SC reserves verdict in bench powers contempt case

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ISLAMABAD: The Supreme Court has reserved the decision of the contempt of court case against Additional Registrar Nazar Abbas regarding the powers of the bench.

A two-member bench of the Supreme Court heard a contempt of court case against the Additional Registrar for not scheduling the bench’s jurisdiction case for hearing.

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 the hearing, Justice Mansoor Ali Shah asked whether the Judges Committee can annul the court order.

Amicus curiae Hamid Khan said that an administrative order cannot override a judicial order. Justice Shah further emphasized that the case before the bench is whether a committee of judges can withdraw a case in the light of a court order and whether the full court can review such a decision.

Justice Aqeel Abbasi said that there seems to be confusion on this issue, as in the past, the formation of benches was the prerogative of the Supreme Court, but since then some of the powers of the court have been reduced, raising questions on the 26th constitutional amendment.

Justice Shah also asked whether any country allows the executive to form a bench instead of the judiciary, to which Hamid replied that it does not happen anywhere.

Justice Shah said that Article 191A would allow for the creation of judicial commissions for constitutional benches, with Justice Abbasi expressing concerns about possible overlap in this regard.

Hamid explained that Parliament can legislate to determine the jurisdiction of courts other than the Supreme Court, but cannot curtail the powers of the Supreme Court.

Hamid also said that the Practice and Procedure Committee has the authority to refer cases to the Constitution Bench. Justice Shah inquired whether the committee could ignore the court order, citing the Raja Ameer case where a full court was constituted.

Justice Shah also raised questions about the powers of the Practice and Procedure Committee under Article 2A and asked whether it could overrule court orders.

Hamid replied that no situation should arise where the Practice and Procedure Committee ignores the court order.

Meanwhile, Attorney General for Pakistan Mansoor Usman Awan said that the current bench for the contempt of court case was not properly constituted.

According to the rules of the Supreme Court, the Chief Justice will decide on the formation of the bench for contempt of court cases.

The Attorney General further clarified that the present bench does not have jurisdiction to hear the contempt of court case. He explained that the matter falls under the ambit of civil or criminal contempt. The entire procedure for contempt of court is laid down, and it is within the power of the Chief Justice to oversee it.

After hearing the arguments, the Supreme Court reserved the verdict in the contempt of court case, which will be heard later.

Separately, sources confirmed that the Additional Registrar of the Supreme Court submitted a reply to the show-cause notice in the court, requesting its withdrawal and saying that there was no disobedience to the court order.

He clarified that the matter of bench formation was referred to the Practice and Procedure Committee for review.