Islamabad:
The judge of the Supreme Court Muhammad Ali Mazhar warned regular benches not to exercise his competence in matters linked to the interpretation of the law and the constitution which falls under the domain of the constitutional bench under article 191a of the Constitution .
“With all humility at my command and with due reverence, if any regular bench, despite the clear and unambiguous constitutional provisions, over-abitiously assumes jurisdiction or undertakes to decide the alleged controversy based solely on the breath -The realization, it would not only constitute an unjustified exercise of competence, but would also constitute a violation of article 191a of the Constitution.
“The judges took an oath to preserve, protect and defend the Constitution. From Pakistan, 1962 (“Constitution of 1962”) and subsequently modified under article 209 (8) of the Constitution of the Islamic Republic of Pakistan, 1973, implies complete submission to the Constitution and, by virtue of IT, to the law, “said a 20 20 20 judgment written by judge Mazhar while accepting the decision of the constitutional bench, the two judicial benches of the regular bench were recalled.
A bench of three judges of the Supreme Court, led by judge Syed Mansoor Ali Shah had adopted provisional orders for the arbitration of the legal issue to know if the regular benches could be prohibited to hear the questions related to the interpretation of the interpretation of the interpretation of the interpretation of the interpretation of law and constitution under article 191a of the Constitution.
Despite the judicial orders, the Constitutional Banc Committee had withdrawn the ordinary bench affair and it was fixed before the constitutional bench. Later, the constitutional bench led by judge Aminuddin Khan also recalled these ordinances.
However, the constitutional bench did not give reason to the way the committee could withdraw the case in violation of the judicial order.
Judge Mazhar noted that in the current scenario, no bench of this court, with the exception of the constitutional bench, can exercise: (i) the initial jurisdiction of the Supreme Court under article 184; (ii) the competence on appeal of the Supreme Court under article (3) of article 185, when a judgment or an order of a high court adopted under article 199 implies the constitutionality of any law or a question of substantial law concerning the interpretation of the Constitution; and (iii) the advisory competence of the Supreme Court under article 186.
The accuracy of the clause (5) of article 191a dictates that all the petitions, calls or examination of requests against the judgments rendered or the orders adopted, to which the clause (3) applies immediately, waiting or waiting or Departed before the Supreme Court before the start of the 26th standard amendment transferred to the constitutional benches and must only be heard and decided by benches made up under the clause (4).
The expression “very-all transferred” is explicit and well articulated, leaving no room for a misunderstanding or a perplexity. This sentence cannot be assimilated to a simple deletion clause which establishes a legal fiction by treating something as if it were different from its real state or declaring that certain facts must be considered established, “said judge Mazhar.
With regard to the role of two committees working under the law of the Court and the Supreme Court 2023, the judge SC declared that two different committees “demonstrate that the first committee, under article 2, is Responsible for the processing and fixing of cases before this court (regular benches) other than those which fall under article (3) of article 191a of the Constitution.
“On the other hand, the Committee under article 2A has been skills with competence to determine whether a case falls under article (3) of article 191a. If this is the case, it must be heard by the Constitutional bench; otherwise, it can be returned to the committee formed under article 2 for fixing and elimination by another bench.
Judge SC also declared that it was also clear beyond the shadow of doubt that the two committees had been attributed to separate roles and responsibilities, without overlapping or overestimated the jurisdictional limits of the other, to the Exception of the common factor that the most high-end judge of the constitutional bench is also an ex-official member of the committee constituted under article 2 of the law on practice and procedure.
“Currently, if a case falls under the clause (3) of article 191a of the Constitution, the first committee has no competence to fix such a case before an ordinary bench. The unjustified fixation of a case intended for the Constitutional bench before an ordinary bench, or vice versa, does not create the jurisdiction, because the clear distinction has already been established under article 191a of the Constitution.
Judge Mazhar also declared that instead of learning or of jurisdiction or transmitting a legal order for fixing, the best line of conduct would have been to refer the case to the commission constituted under article 2 of the law on practice and procedure.
“If the committee had found the question beyond the jurisdiction of an ordinary bench, it could have referred to the committee trained to determine whether a case must be sent to the constitutional bench. The said committee of its own request can even return the question to the committee of constitutional benches to consider.
“Under the diktats of the current scheme of the Constitution, judges in the constitutional benches of the Supreme Court can be appointed from time to time, as can be determined by the Pakistan Judicial Commission, with the rider that such a bench may include equal number of judges from each province.
“This is also a file according to which after the introduction of constitutional amendments and the constitution of the constitutional bench, regular benches and the constitutional bench, by mutual cooperation, and being two branches of a tree, transferred between them To hear in hearing in accordance with their respective jurisdictions, as indicated by this constitutional regime.
Judge Mazhar said that, according to paragraph (2) of article 2a of the Practice and Procedure Act, the Supreme Court registrar is required to provide the administrative and sectoral support required to the constitutional benches.
“This provision, in my opinion, accentuates the role of the registration office, including the management of the luminaire, to help the second committee to determine the competence by an order of speech, if a case does not fall under the jurisdiction of the bench Constitutional, it can then be referred to the committee formed to have decided to fix the case before the regular benches of this court.
Or oversights in the event that the fixation and the branches / civil servants concerned can be made aware of the nity-Gritties of article 191a of the Constitution so that they do not make such an error or such a mishap in the future.
“The carelessness or inadvertently of the civil servants concerned has created an unjustified situation, leading to misunderstandings without simply reason. Support of the Department of Information Technologies (TI) of this court. From the Directorate of the Lighting and the Registrar for Facilitate a final verification before the lists of cause are published to avoid any advertising or inadvertent errors or discharges. “Printed form” must be introduced, requiring the AOR / ASC to indicate the nature of each case and its appropriate jurisdiction at the time of the deposit. Established by the registrar before the committee concerned for a preliminary jurisdictional determination “judge Mazhar.
“The constitutional bench, on 28.01.2025, rightly recalled the ordinances dated from 13.01.2025 and 16.01.2025, adopted by the regular bench of this courtyard, being without competence and, obviously, by recalling such orders, the Superstructure which is also built there, and obviously by recalling such orders, the superstructure which is also built there, and obviously, therefore on, any procedure taken, the orders passed or the measures made under the above -mentioned orders lose their status and their effect, “he concluded.
