26th Constitutional Amendment has nothing to do with bench powers case, says Justice Mansoor Ali Shah

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ISLAMABAD: Senior Supreme Court judge Justice Mansoor Ali Shah has said that the 26th constitutional amendment has nothing to do with the issue of settling certain cases in regular benches.

Justice Shah’s remarks came during the contempt of court hearing on Wednesday when a two-member bench headed by Justice Shah and including Justice Aqeel Ahmad Abbasi was constituted regarding non-scheduling of the case on the bench’s powers.

The case relates to the wrongful fixing of cases – including a challenge to the provisions of the Customs Act, 1969 – by Additional Registrar (Judicial) Nazar Abbas – who has been removed from his post – who has been indicted by the Supreme Court. So the cases were decided wrongly. Constitution bench instead of regular bench.

The cases were scheduled before a three-judge regular bench which was heard on 13 January 2025, where the constitutionality of sub-section 2 of Section 11A of the Customs Act was challenged, apart from the merits of the case.

There was a dispute over the bench’s jurisdiction and the cases were subsequently adjourned till January 16.

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

Considering the serious nature of the error, a meeting of the committee was 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 and clearly such jurisdiction rests with the Constitution Bench and no one else.

The Committee, therefore, withdrew these cases from the Regular Bench and directed that they be placed before the Constitution Bench Committee constituted under Article 191A of the Constitution for further determination.

Due to this matter, Justice Shah, Justice Ayesha A. Malik and Justice Aqeel also wrote a letter to Chief Justice Yahya Afridi and Chief Justice Aminuddin Khan regarding the issue related to the constitution of benches.

Today’s hearing

During today’s hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan argued that the court’s jurisdiction in contempt cases is limited, stressing that the written notices issued by those issuing show cause notices are Statements are essential.

Argued that after the 26th Amendment, the power to constitute benches now rests with the Constitution Committee. Justice Shah, in reply, said that the question was related to Section 2 of the Practice and Procedure Act, which asked whether a case could be withdrawn if a bench wanted to determine its jurisdiction.

In response to AGP Awan’s objection that the amicus curiae appointed by the court were lawyers who had challenged the 26th Amendment, Justice Shah suggested the appointment of another amicus curiae from the same group, when That Justice Aqeel agreed with the concerns of the Attorney General.

Furthermore, the Attorney General asserted that under the Court’s original criminal jurisdiction, the matter was strictly between the Court and the alleged adversary.

AGP Awan also remarked that the questions raised by the court could not be heard in the context of the contempt of court case, adding that unless Nazar gives a written reply, the registrar’s stand is not considered a defence. could go

He also clarified his dual role as prosecutor and legal advisor under Section 27A in contempt of court cases.

Meanwhile, asking whether the committee could transfer a case that was being heard by a regular bench, Justice Shah pointed out that the two-judge bench, arguing in defense of the registrar, said that Due to the decision of Committee

Noting that the case concerned neither the powers of the Practice and Procedure Committee nor the 26th Amendment, Justice Shah said: “If anyone is afraid, that is their own business. We did not intend it, but We [merely] It wanted to understand why the case was returned.”

“It is not clear to what extent the vow is,” he added. [Abbas] The issue is related to the problem of non-determination. Nazr Sahib [it seems] Something has happened to you too.”

The court directed Additional Registrar Nazar to submit a written reply today.

Justice Shah asked the Attorney General to suggest a name for the amicus curiae to which Awan replied with a smile that I am not suggesting a name, the important case under the Customs Act is not before you yet.

The Supreme Court then appointed Khawaja Haris and Ahsan Bhawan as amicus curiae and directed the additional registrar to submit a written reply and adjourned the case till tomorrow (Thursday).