“If someone is scared, it’s their own matter: Justice Shah.
AGP opposes amicus curiae appointed by Supreme Court.
Khawaja Haris, Ahsan Bhoon named new amicus curiae.
ISLAMABAD: Justice Mansoor Ali Shah has said that the case related to the bench’s jurisdiction has no connection with the 26th Constitutional Amendment, adding that if someone feels scared on their own, that’s a different matter.
His remarks came during a contempt of court hearing on Wednesday regarding the non-scheduling of a case on the powers of benches, with the two-member bench being headed by Justice Shah which also includes Justice Aqeel Ahmed Abbasi.
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.
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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.
Hearing
During the hearing today, Attorney General for Pakistan (AGP) Mansoor Usman Awan argued that the court’s jurisdiction in contempt cases was limited, emphasising that written statements from those issued show-cause notices were necessary.
Argued that, following the 26th Amendment, the authority to form benches now lies with a constitutional committee. Justice Shah countered, saying that the question pertains to Section 2 of the Practice and Procedure Act, asking whether a case can be withdrawn if a bench seeks to determine its jurisdiction.
In response to AGP Awan’s objection that amicus curiae appointed by the court were lawyers who had challenged the 26th Amendment, Justice Shah suggested appointing other amicus curiae from the same group, while Justice Aqeel concurred with the attorney general’s concerns.
Furthermore, the attorney general asserted that under the court’s original criminal jurisdiction, the issue was strictly between the court and the alleged contemnor.
The AGP also Awan remarked that the questions raised by the court could not be heard within the context of the contempt case, adding that until Nazar provides a written response, the registrar’s stance cannot be considered as his defence.
He also clarified his dual role as prosecutor and legal adviser under Section 27A in contempt cases.
Meanwhile, asking whether the committee can shift a case which was being heard by a regular bench, Justice Shah pointed out that the arguments made in the defence of the additional registrar by the registrar said that everything happened due to the decision of the two judges’ committee.
Noting that the case neither pertained to the powers of the practice and procedure committee nor the 26th Amendment, Justice Shah said: “If someone is scared, it’s their own matter. Our intention wasn’t such, but we [merely] wanted to understand why the case was returned.”
He added, “It’s unclear to what extent Nazar [Abbas] is linked to the issue of the case not being fixed. Nazar sahib [it seems] something has happened to you as well.”
The court then directed Additional Registrar Nazar to submit a written response today.
Justice Shah asked the attorney general to propose a name for the amicus curiae, to which Awan replied with a smile: “I’m not suggesting any name. The main case under the Customs Act is not before you yet.”
The top court then appointed Khawaja Haris and Ahsan Bhoon as amicus curiae, instructed the additional registrar to submit his written response, and adjourned the hearing until tomorrow (Thursday).