The Supreme Court on Thursday reserved its judgment in the contempt of court case against Additional Registrar Nazar Abbas in the bench powers case.
A two-member bench of the Supreme Court heard the contempt of court case against the additional registrar for not scheduling the bench powers case for hearing.
The issue at hand relates to the erred fixing of cases – which included a challenge to the vires of Custom Act 1969 – by Additional Registrar (Judicial) Nazar Abbas – who has been removed from his post – who wrongly fixed cases meant for the Supreme Court’s constitutional bench instead of a regular one.
The cases were fixed before a regular bench of three judges which were heard on January 13, 2025, where in addition to the merit of the case, the constitutionality of sub-section 2 of section 11A of the Customs Act was challenged.
The jurisdiction of the bench was contested and subsequently, the cases were adjourned to January 16.
Realising 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 January 17 under the chairmanship of the Chief Justice of Pakistan (CJP). The committee noted that Clause 3 of Article 191A of the Constitution read with Clause 5 of Article 191A of the Constitution expressly vests such jurisdiction in the constitutional bench and none other.
The committee, therefore, withdrew these cases from the regular bench and directed that the same should be placed before the constitutional bench committee constituted under Article 191A of the Constitution for re-fixation.
The issue has also led to Justice Shah, Justice Ayesha A Malik and Justice Aqeel writing a letter to CJP Yahya Afridi the head of the constitutional bench Justice Amin-ud-Din Khan about the issue regarding the formation of benches.
During the proceedings, Justice Mansoor Ali Shah questioned whether a judicial order could be reversed by the judges’ committee.
Amicus curiae Hamid Khan said that an administrative order could not override a judicial order. Justice Shah further emphasised that the case before the bench concerns whether the judges’ committee could withdraw the case in light of a judicial order and whether such a decision could be reviewed by the full court.
Justice Aqeel Abbasi noted that there seems to be confusion over the matter, as in the past, the formation of benches was the prerogative of the SC, but some powers of the court have since been curtailed, raising questions about the 26th Constitutional Amendment.
Justice Shah also asked whether any country allows the executive to form benches instead of the judiciary, to which Hamid responded that this does not happen anywhere.
Justice Shah said that Article 191A would allow the creation of a judicial commission for constitutional benches, and Justice Abbasi raised concerns about potential overlap in this regard.
Hamid explained that Parliament could legislate to determine the jurisdiction of courts other than the SC, but could not reduce the top court’s powers.
Hamid also said that the Practice and Procedure Committee has the authority to assign cases to the constitutional bench. Justice Shah queried whether the committee could disregard a judicial order, referencing the Raja Amir case where a full court was constituted.
Justice Shah also raised questions about the Practice and Procedure Committee’s powers under Article 2A, asking if it could override judicial orders.
Hamid responded that no situation should arise where the Practice and Procedure Committee disregards a judicial order.
Meanwhile, Attorney General for Pakistan Mansoor Usman Awan said that the current bench has not been properly constituted for the contempt of court case.
According to the apex court’s rules, the chief justice will make the decision regarding the formation of a bench for contempt of court cases.
The attorney general further clarified that the current bench does not have the authority to hear the contempt of court case. He explained that this matter falls under the domain of civil or criminal contempt. The full procedure for contempt of court is outlined, and it is within the chief justice’s authority to oversee it.
The SC, after hearing arguments, reserved its judgment in the contempt of court case, which will be announced later.
Separately, sources confirmed that the additional registrar of the SC submitted a response to the show-cause notice in court, requesting its withdrawal and stating that no disobedience of the judicial order occurred.
He clarified that the issue of bench formation was forwarded to the Practice and Procedure Committee for review.
