SC judge wonders if contempt accused will be in full court

ISLAMABAD: The Supreme Court (SC) on Monday disposed of as withdrawn the Intra-Court Appeal (ICA) filed by Additional Registrar (Judicial) Nazar Abbas against the show-cause notice issued to him for contempt of court in a bench’s power case.

A six-member larger bench headed by Justice Jamal Khan Mandokhail heard the Intra-Court Appeal of Additional Registrar (Judicial) Nazar Abbas.

Other members of the bench included Justice Muhammad Ali Mazhar, Justice Athar Minallah, Justice Syed Hassan Azhar Rizvi, Justice Shahid Waheed and Justice Musarat Hilali.

The court disposed of as withdrawn the ICA and held that detailed reasons would be recorded later on by the majority members. Justice Athar Minallah and Justice Shahid Waheed noted down in the court’s order that they would not give their separate detailed reasons for disposing of the matter as withdrawn.

Similarly, majority of the members of the bench raised questions over the order passed by the two-member bench comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbassi for referring the matter to the chief justice for formation of full court review as to how an administrative order could undo the judicial order passed by a court.

During the course of hearing, counsel for the petitioner Additional Registrar (Judicial) Nazar Abbass pleaded for withdrawing the instant ICA. Justice Jamal Khan Mandokhail however, asked the counsel that he could withdraw his claim but not the ICA which was now before the court.

Justice Athar Minanllah asked the counsel as to why he wanted to withdraw his appeal to which the counsel replied that a two-member bench headed by Justice Syed Mansoor Ali Shah and comprising Justice Aqeel Ahmad Abbasi issued a written decision in this case and withdrew the notice of contempt of court against his client.

The counsel further informed the court that the court had requested the Chief Justice to form a full court on the contempt of court case against the two committees, upon which Justice Jamal Mandokhail asked him which two committees were.

The counsel replied that one was the Practice and Procedure Committee of the regular benches, the other was of the constitutional benches. Justice Jamal Mandokhail remarked that the chief justice was also included in this and if the case had been sent to constitute a full court against an accused of contempt of court.

Justice Muhammad Ali Mazhar inquired whether the four accused of contempt of court would also sit in the full court.

Justice Athar Minanllah inquired why the court did not start the contempt of court proceedings at the same time when the court revealed its mind through the decision. On which Justice Jamal Mandokhail remarked, “Yes, if we were called, we would have appeared.”

The court summoned Attorney General for assistance however, Additional Attorney General Aamir Rehman told the court that AG had gone to a meeting.

When Justice Mandokhail asked the Additional Attorney General about his position on the development, Justice Athar Manullah remarked that there was a problem that this decision was not challenged before them adding that they could review this decision only when it was challenged before them.

Justice Shahid Waheed remarked if a suo motu jurisdiction was to be exercised as the power lies only with the constitutional bench.

Justice Jamal Khan Mandokhail observed that now this decision was a judicial property and they should resolve it once for all.

“There is a show every day and it should end”, Justice Mandokhail remarked and questioned as to whether the decision of committees were challenged before the two-member bench.

Justice Mandokhail noted that the central case was set for a hearing before the constitutional bench. Justice Muhammad Ali Mazhar remarked that the contempt of court had the whole procedure in the law and both committees had been held as contempt.

“As per procedure, first notice is issued”, Justice Mazhar said adding that around the world fair trial is provided and questioned as to whether Article 10A is not available for the judges.

The judge further asked as to whether the four judges alleged for contempt would not sit on the full court.

“The two-member bench should have given us the notice and we would have appeared in his court”, Justice Mazhar remarked. Justice Shahid Waheed, however, objected, saying that the matter which was not in the Intra Court Appeal and if this larger bench could see it.

To which Justice Muhammad Ali Mazhar remarked that they should also file an Intra-Court Appeal against the verdict adding that they were seeing this matter in the continuation of the same case.

Justice Jamal Mandokhail directed that it would be appropriate that the judges should not cross the talk. “We will follow the constitution, not the order”, Justice Mandokhail remarked adding that the question here was if powers were exceeded and inquired as to whether the committees exceeded their powers.

Justice Muhammad Ali Mazhar gave remarks that the lawyers were saying that the benches had been challenged as well. As soon as the Army Act was amended, the military trial case came into the constitutional bench.

The lawyer took the stand that the Intra-Court Appeal was against the petition. Justice Athar Manullah remarked whatever happened was a misfortune adding that if this bench wanted to continue the proceedings, he would recuse from the bench as they had no case at this time and the matter had become infructuous.

“If the bench wants to continue the proceedings, I will apologize”, Justice Minaallh remarked. Justice Jamal Khan Mandokhail referred to the letter of Justice Mansoor Ali Shah wherein he had stated that both he and Justice Muhammad Ali Mazhar could not sit on the bench hearing Intra Court Appeal due to conflict of interest.

“Let me speak on the issue of conflict of interest and want to know as to what privileges we have got while adding to the constitutional bench”, Justice Mandokhail remarked and asked if this was a luxurious interest that was being talked about and if they had got any plot.

Justice Mandokhail continued that they were running two benches daily and questioned if they were in the interest of sitting in the constitutional bench.

“Our only interest is to protect the constitution. And if we are sitting in the constitutional bench ourselves, someone has to tell us what are the interests we have,” Justice Mandokhail remarked.

The judge remarked that the manner in which the contempt of court was declared, he would not go to the committee meeting. Justice Athar Minallah remarked that today a senior politician’s statement had been published that there is no democracy in the country and the country is not being run according to the constitution.

“It is unfortunate that the lesson from history has not been learned by the judges, neither politicians nor politicians”, Justice Minallah remarked adding that letter of six judges came regarding intervention in judiciary but nobody paid any heed to that letter and everyone turned their eyes.

Justice Athar Minallah asked advocate Shahid Jameel as to whether he had requested before a two-member bench for full court. The counsel replied that he is requesting this larger bench to constitute a full court which is the only remedy to decide the issue once for all.

Justice Jamal Mandokhail remarked that if they order in this regard and a full court is not constituted then another contempt of court will start adding that the main case is fixed today (Tuesday) before the constitutional bench. Later, the court disposed of as withdrawn the ICA of Additional Registrar (Judicial) Nazar Abbas’ petition.