ISLAMABAD:
The Supreme Court on Tuesday removed its Additional Registrar (Judicial) for “mistakenly” listing a constitutional question before a regular bench, but did not reconsider its decision to remove the case from the regular bench, despite a request from members of the judiciary to comply with 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 number of cases in which the vires of the Customs Act, 1969 were challenged.
However, an SC committee headed by Chief Justice of Pakistan Yahya Afridi on January 17 ordered his office to remove these cases from the regular judiciary and place them before the Constitutional Judiciary (CB) Committee constituted under Article 191A of the Constitution for re-registration.
The move irked regular members of the judiciary who issued a contempt notice to the Additional Registrar (Judicial). The bench members also wrote a letter to the CJP Afridi-led committee.
In the letter, they said the office’s failure to comply with a judicial order of the court not only undermines the integrity of the institution, but also constitutes a challenge to a well-established law of this court that administrative orders cannot remove the jurisdiction of the court. become aware of a matter.
“It also raises serious concerns about the independence of judges. Such failure constitutes contempt of court and erodes public confidence in the justice system, damaging its reputation as a fair and impartial arbiter of justice.”
He said propriety demanded that in order to maintain the independence, transparency, comity of the judges and the smooth functioning of the court, the judicial order passed by the ordinary judiciary on January 16 should be respected.
“The office may be directed to resolve the matter at 1:00 p.m. today. [Tuesday]in accordance with the court order and the contents of this letter,” he added.
Despite their letter, the SC regular committee did not revise its decision regarding the removal of the case from regular jurisdiction but removed the deputy registrar “for serious misconduct.”
In a statement issued on Tuesday, the SC said that these cases were supposed to be settled before the Constitutional Chamber but were mistakenly fixed before the Ordinary Chamber, “therefore, this led to a waste of time, resources of the institution as well as parts”. .
“In brief, it is stated that the cases mentioned were fixed before a regular bench of three honorable judges. The cases were heard on January 13, 2025 where, apart from the merits of the case, the constitutionality of sub-section 2 of section 11A of the Customs Act have been challenged.
“On this basis, the jurisdiction of the Hon’ble Bench was challenged. Subsequently, the matters were adjourned to January 16, 2025.
“Aware of the serious deficiency on their part, the Judiciary, through a memorandum, approached the regular committee under section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023 ).
“In view of the seriousness of the disqualification, the Committee met on January 17, 2025 under the chairmanship of the Chief Justice of Pakistan.
“The Committee noted that clause 3 of Article 191A of the Constitution of the Islamic Republic of Pakistan, read with clause 5 of Article 191A of the Constitution, expressly confers this jurisdiction on the Constitutional House and on no other .
“The Regular Committee also directed that in future all matters under Article 191A of the Constitution shall be referred to the Constitutional House Committee constituted under Article 191A of the Constitution, irrespective of any order adopted by an ordinary Chamber.
“The Regular Committee has directed the Registrar of the Supreme Court to expedite the process of review of all pending cases as well as due diligence of cases filed daily in this court in order to avoid recurrence of such lapses.
“It is pertinent to mention 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 judges Honorable Members will hear these requests on January 27, 2025.”
Meanwhile, the regular bench comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi heard the contempt proceedings initiated against the Additional Registrar (Judiciary).
However, due to the additional registrar’s work stoppage, SC Registrar Muhammad Salim Khan appeared before the bench and said the cases were listed before the regular bench “due to an ongoing error examination”.
He also contended that the striking out of the cases before the bench was not based on the malicious intention of the Additional Registrar but on a bona fide act taken in accordance with the directions of the Regular Committee.
During the hearing, Justice Shah and Justice Abbasi questioned how the committee under the Supreme Court Practice and Procedure Act, 2023, through an administrative order, could withdraw a matter of the ordinary judiciary which has already taken up the matter.
The bench also questioned why Justice Ayesha Malik was expelled from the bench on Tuesday. Justice Abbasi said this division bench may be dissolved after some of their remarks.
He noted that the judiciary decides certain legal questions about whether a court order can be rejected by an administrative committee. It will also examine how the commission can order the withdrawal of a case before a court that has already heard the case.
The bench has appointed Hamid Khan and Muneer A Malik as amicus curiae in the case. The hearing will resume today (Wednesday).
Commenting on the development, lawyer Asad Rahim Khan said all this confusion is a result of refusal to hear petitions challenging the 26th Amendment.
“A case that completely transformed the judiciary should have been filed on day one; it was left in the freezer for three months while Supreme Court justices questioned the limits of their jurisdiction,” he said. he added.
Assad said the matter had now finally been listed to be heard by the Constitutional Chamber, but that was also no solution, given that the very existence of the Constitutional Chamber had been directly challenged. “To state the obvious, a constitutional judiciary cannot decide the fate of the constitutional judiciary.”
Former additional public prosecutor Tariq Mahmood Khokhar, head of judicial history, said it was worse than the 1997 assault on the SC.
“The 26th Amendment and its fifth columns 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 to others”
Khokhar says the consequences are: a perverse definition of the SC: most judges, including the CJP, do not have the right to conduct judicial review and determine their own jurisdiction, their court orders are overturned by administrative order and the vires of the 26th Amendment were put into effect. a catch.
“It has been well-established law since 1803 (the Marbury case) ‘that deciding the constitutionality of laws is an integral part of the role of the judiciary.’
“Under the aegis of the CJP, the Constitutional Chamber of the SC reversed this situation. A constitutional institution has become impotent and dysfunctional thanks to the active collaboration of its members.
Commenting on the removal of the additional registrar, Khokhar said a mid-ranking official had become the scapegoat for the actions of his superiors in the judiciary.
