SC reserves verdict in contempt case over bench’s jurisdiction

ISLAMABAD: The Supreme Court (SC) Thursday reserved its judgment on the matter of its jurisdiction for hearing contempt proceedings after hearing arguments of amicus curies appointed on the issue.

A two-member SC bench comprising Justice Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi heard the contempt of court case against Additional Registrar (Judicial) Nazar Abbas in a matter related to the bench’s power case.

During the hearing, Advocate Hamid Khan, Ahsan Bhoon, Khawaja Haris, amicus curies (friends of court) extensively assisted the court on the issue, while Attorney General Mansoor Usman also argued before the court.

Justice Mansoor Ali Shah observed that prima facia, the two-member judges committee ignored the judicial order passed by the court. Justice Mansoor Ali Shah questioned as to whether a judicial order passed by the court could be overturned by the judges committee.

Commencing his arguments, Hamid Khan submitted before the court that the SC had been established under Article 175 of the Constitution whereby all judicial powers had been delegated to the Supreme Court.

He submitted that the definition of supreme is quite clear wherein all judges had been included, adding that it could not be assumed that a particular judge could only exercise powers of the Supreme Court.

Justice Shah asked Hamid Khan as to whether a judicial order could be changed through an administrative order. Hamid Khan replied that an administrative order could not supersede a judicial order.

Justice Aqeel Ahmed Abbasi observed that there seems to be confusion over the matter, as, in the past, formation of benches was the prerogative of the SC, but some powers of the court had since been curtailed, raising questions about the 26th Constitutional Amendment.

Justice Mansoor asked whether any country allows the executive to form benches instead of the judiciary, and whether there is any example in this regard.

Hamid Khan replied that it did not happen anywhere and submitted that although parliament could legislate to determine the jurisdiction of courts other than the SC, it could not reduce the powers of the Supreme Court. Hamid also said that the Practice and Procedure Committee had the authority to assign cases to the constitutional bench. Justice Shah questioned whether the committee could disregard a judicial order, referencing the Raja Amir case where a full court was constituted.

Justice Mansoor asked the amicus curie as to whether the judges committee, while exercising its powers under Section 2A of the Practice and Procedure, could override the judicial orders. Hamid Khan replied that no situation should arise where the Practice and Procedure Committee disregard a judicial order. He further submitted that “Article 191A talks about constitutional benches but does not mention about one constitutional bench”.

He submitted that there could be one constitutional bench comprising at least five judges and in such a situation, three constitutional benches could be constituted and whosoever amongst senior, would head the bench.

Ahsan Bhoon thanked the court for appointing him as an amicus curie, adding that as per the court order he appeared in the court. “It’s good that you obey our order; otherwise nobody obeys us,” Justice Mansoor told Bhoon.

“We obey your order but when there is an issue of civil liberty and rights of independence of citizens, then we express our reaction,” Bhoon replied.

Justice Aqeel Abbasi asked the amicus curie as to whether the decisions given by the Supreme Court were against the civil liberty.

Justice Mansoor remarked that so far the verdict given by the apex court on July 12, 2024, had not been implemented.

Ahsan Bhoon submitted that in the past, the court, with regard to constitutional interpretation, had given some decisions, making constitutional provisions infructuous.

Bhoon submitted that parliament had the authority to make legislation with two-thirds majority. He submitted that a full court could not be constituted through a judicial order. Justice Mansoor asked Bhoon whether anywhere in the world the executive constituted a bench.

Bhoon, however, submitted that the law was enacted by parliament, adding that as long as it remains, it would be a part of the Constitution.

“Whether we even cannot review Article 191A of the Constitution,” Justice Mansoor asked Bhoon, to which he replied that the court could not but refer it to the constitutional bench. Justice Mansoor, however, replied that the constitutional bench was the production of 26th Constitutional Amendment and questioned as to whether a running case could be taken over by the judges’ committee.

Ahsan Bhoon submitted that it was the will of the Constitution. Justice Aqeel Abbasi observed that a judicial order could be removed through another judicial order.

Ahsan Bhoon submitted that when a matter pertains to law and Constitution, then the committee could refer to the constitutional bench. He submitted that all constitutional references so far given in this case became infructuous after the 26th Constitutional Amendment.

Meanwhile, Khawaja Haris, another amicus curie, submitted that in civil and criminal cases, a regular bench could examine constitutional questions. Justice Mansoor said recently a regular bench had given verdict on Article 63(A) of the Constitution, but here a case was taken over and fixed it before a constitutional bench.

Khawaja Haris replied if the simple Committee of Practice and Procedure had done that, it was wrong, as still it was in field, adding that taking over the case by the judges’ committee should be looked into in the context of its constitutional mandate.

Elaborating his point, Khawaja Haris submitted that the committee established under the Practice and Procedure could not directly fix the case before the constitutional bench, adding that only the constitutional committee could fix the case before the constitutional bench.

Justice Aqeel asked the amicus curie as to whether it was not written in the Constitution that the SC orders were a binding on all executive authorities. He questioned as to whether the provision was not applicable to the SC administrative committee.

Justice Mansoor told the amicus curie if a judicial order was returned by an administrative committee, then the independence of judiciary would come into the hands of the said committee.

Khawaja Haris submitted that Article 191A was now part of the Constitution, which was not set aside by any judicial forum, adding that if any constitutional point had come before the regular bench, it should have been referred to the committee of Practice and Procedure.

Khawaja Haris submitted that in a contempt case, two-member regular bench could not order for constitution of a full court, adding that there were two committees for formation of benches.

“You are right that benches are formed by the committees, but prima facia the chief justice is authorised to constitute a full court, but not the judges committees,” Justice Aqeel told Haris.

Khawaja Haris submitted that under the Supreme Court Rules 1980, only the chief justice of Pakistan could be requested for the formation of a full court.

Justice Aqeel asked whether they could request the chief justice for the formation of a full court, while hearing a contempt case.

Khawaja Haris submitted that for the purpose, the Rules of the Supreme Court would have to be looked into.

Meanwhile, Attorney General for Pakistan Mansoor Usman Awan, while arguing before the court, submitted that the current bench had not been properly constituted for the contempt of court case. He submitted that according to the apex court’s rules, the chief justice would make the decision regarding formation of a bench for the contempt of court cases.

The attorney general submitted that the current bench did not have the authority to hear the contempt of court case, adding that the matter falls under the domain of civil or criminal contempt. The AGP submitted that the procedure for contempt of court was exclusively defined in the Constitution and it was within the chief justice’s authority to oversee it. Later, the court reserved the judgment.