ISLAMABAD:
The Supreme Court on Tuesday removed its additional registrar (judicial) for “erroneously” including a constitutional matter before a regular court, but did not review its decision to withdraw the case from the regular court, despite a request from members of the court. for the fulfillment of their orders.
A three-member regular bench headed by Justice Syed Mansoor Ali Shah and comprising Justice Ayesha Malik and Justice Aqeel Abbasi was hearing a series of cases challenging the vires of the Customs Act, 1969.
However, on January 17, an SC committee headed by Chief Justice of Pakistan Yahya Afridi directed his office to remove these cases from the regular bench and present them before the Constitutional Bench (CB) Committee. constituted under Article 191A of the Constitution for reinstatement in the list.
This move irked the regular members of the court who issued a contempt notice to the additional registrar (judicial). The tribunal members also wrote a letter to the CJP Afridi-led committee.
In the letter, they stated that the office’s failure to comply with a court order not only undermined the integrity of the institution but also defied a law established by this court that administrative orders cannot remove the court’s jurisdiction. take cognizance of a matter.”
“It also raises serious concerns about the independence of the courts. Such failure constitutes contempt of court and erodes public confidence in the judiciary, damaging its reputation as a fair and impartial arbiter of justice.”
He said that decorum demanded that to maintain the independence, transparency, courtesy of the judges and the proper functioning of the court, the court order passed by the ordinary court on January 16 be complied with.
“The office may be directed to settle the case today at 1:00 p.m. [Tuesday]according to the court order and the content of this letter,” he added.
Despite his letter, the SC regular committee did not review its decision on withdrawal of the case from the regular court, but removed the assistant registrar “for gross misconduct”.
In a statement issued this Tuesday, the SC indicated that these cases should be resolved before the Constitutional Chamber but were resolved by mistake before the Ordinary Chamber, “which generated a waste of time, resources of both the institution and the of the parties”. .
“It is briefly indicated that the aforementioned cases were resolved before an ordinary Chamber of three Honorable Judges. The cases were heard on January 13, 2025 where, in addition to the merit of the case, the constitutionality of paragraph 2 of article 11A of the Law of Customs were challenged.
“Based on this, the jurisdiction of the Honorable Court was challenged. Subsequently, the cases were adjourned until January 16, 2025.
“Realizing the grave error on its part, the Judiciary, through a note, approached the regular Committee under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023.
“Considering the seriousness of non-compliance, the Committee met on January 17, 2025 under the chairmanship of the Chief Justice of Pakistan.
“The Committee noted that paragraph 3 of Article 191A of the Constitution of the Islamic Republic of Pakistan, read with paragraph 5 of Article 191A of the Constitution, expressly confers such jurisdiction on the Constitutional Court and no other.
“The regular Committee also directed that in future all cases falling under Article 191A of the Constitution be presented before the Constitutional Bench Committee constituted under Article 191A of the Constitution irrespective of any order passed by a regular Bench.
“The regular Commission ordered the Secretary of the Supreme Court to expedite the process of scrutiny of all pending cases, as well as due diligence of the case initiated daily in this court to avoid repetition of such lapses.
“It is worth mentioning that the Constitutional Bench Committee also met on January 17, 2025 and decided to settle all cases challenging the 26th Constitutional Amendment and the vires of laws. Therefore, a Constitutional Bench consisting of eight Honorable Judges will hear these petitions on January 27, 2025.”
Meanwhile, the regular court comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi heard the contempt proceedings initiated against the additional registrar (judicial).
However, due to the sick leave of the additional registrar, SC Registrar Muhammad Salim Khan appeared before the court and claimed that the cases were filed before the regular court “due to an error being examined”.
He also held that the delisting of cases before the court was not based on malicious intentions of the additional registrar but on a bona fide act taken in pursuance of the directions of the Ordinary 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 court that has already been busy with the matter.
The court also wondered why Justice Ayesha Malik was excluded from the court on Tuesday. Justice Abbasi said this division could be dissolved after some of his comments.
He noted that the court is resolving certain legal questions about whether a court order can be dismissed by a committee on the administrative side. It will also review how the committee can order a case removed from a court that has already heard the matter.
The court appointed Hamid Khan and Muneer A Malik as amicus curiae in this matter. The hearing will resume today (Wednesday).
Commenting on the development, advocate Asad Rahim Khan said that all this confusion is a result of refusal to hear petitions challenging the 26th Amendment.
“A matter that has completely transformed the judiciary should have been included on the first day; instead, it was left in the freezer for three months, while the chambers of the Supreme Court wondered about the limits of its jurisdiction,” he added.
Asad stated that he has finally been included for a hearing before the Constitutional Chamber, but this is also not a solution, given the fact that the very existence of the Constitutional Chamber has been directly questioned. “To state the obvious, a Constitutional Chamber cannot decide the fate of the Constitutional Chamber.”
Former Additional Solicitor General Tariq Mahmood Khokhar, who has the lead on judicial history, commented that this is worse than the 1997 assault on the SC.
“The 26th Amendment and its fifth columnists have placed the higher judiciary and its role under the control of the executive. An apartheid is imposed within the higher judiciary: an alternative constitutional order with a segregation of judges where some judges are more equal than others”
Khokhar says the consequences are: a perverse definition of the SC: most judges, including the CJP, are prohibited from conducting judicial review and determining their own jurisdiction, their court orders are being revoked by administrative order and the vires of the 26th Amendment. a wait
“It is established law since 1803 (the Marbury case) ‘that deciding the constitutionality of laws is an inherent part of the role of the judiciary.’
“Under the auspices of the CJP, the Constitutional Chamber of the SC has reversed that. A constitutional institution has become impotent and dysfunctional with the active collaboration of its members.
Commenting on the removal of the additional registrar, Khokhar said a mid-ranking official has been made a scapegoat for the actions of his superiors in the judiciary.
