‘Jurisdiction’ becomes bone of contention at apex court

• Justice Shah says once fixed, the case cannot be taken away; calls it ‘gift from God’
• When judge regrets ‘research officer’ is fixing cases, SC official responds ‘not one, but many research officers’

ISLAMABAD: Contempt proceedings, initiated by the Supreme Court against Additional Registrar (Judicial) Nazar Abbasi over a jurisdictional matter, have evolved into a debate on the primacy of judicial orders versus administrative decisions.

Taking up the contempt case on Tuesday, a two-member regular bench comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi asked why a case regarding the regular benches’ jurisdiction was transferred to the constitutional bench.

The bench sought assistance from the attorney general on ramifications for ignoring a judicial order and appointed senior lawyers Munir A. Malik and Hamid Khan as amici curiae.

The issue involves ‘mismanagement’ in the fixing of certain cases that were required to be heard by the constitutional bench, but were ‘mistakenly’ fixed before the regular bench.

Consequently, it led to wastage of time, resources of the institution as well as the parties, according to a Supreme Court announcement.

Those cases were fixed before a regular bench comprising Justice Shah, Justice Ayesha A. Malik and Justice Irfan Saadat Khan. The cases were heard on Jan 13, where, in addition to the merits of the case, the constitutionality of a section of the Customs Act were challenged.

The jurisdiction of the bench was contested and subsequently the cases were adjourned to Jan 16, but realising the serious lapse on their part, the judicial branch through a note approached the regular committee under the Supreme Court (Practice and Procedure) Act, 2023.

In view of the serious nature of lapse, the regular committee convened on Jan 17 under Chief Justice of Pakistan (CJP) Yahya Afridi and noted that Article 191A (3), read with Article 191A (5), “expressly vests such jurisdiction only in the constitutional bench”, the SC explained.

Thereby, the committee withdrew the cases from the regular bench and directed that the same be placed before the constitutional bench committee for re-fixation.

The regular committee also directed that in future all cases falling under Article 191A would be placed before the constitutional bench committee, “irrespective of any order passed by a regular bench”, the court added.

Contempt proceedings

On Tuesday, the regular bench comprising Justice Shah and Justice Abbasi heard the contempt proceeding initiated against the additional registrar, the SC said.

While appearing before the bench, the registrar pleaded that the mistake in fixation of the cases was being examined and de-listing of the cases before the bench was not based on malicious intent of the additional registrar, rather it was a bona fide act, taken in compliance with the direction of the regular committee, an SC announcement said.

During Tuesday’s hearing, Justice Shah, while pointing towards the registrar, observed that the judicial order of placing the case regarding jurisdiction of the regular bench was very clear.

When Justice Aqeel asked about the minutes of the committee meeting that decided to re-assign the case, highlighting that withdrawing a part heard case from the regular bench was a very serious matter, the registrar explained that the minutes were “confidential”.

While Justice Shah asserted that once proceedings begin, no committee could withdraw the case through an administrative order, the registrar insisted that the regular committee which fixed cases could also withdraw them.

“You just cannot do it,” Justice Shah intervened, adding once fixed, the case cannot be taken away.

“It is a gift from God, and we will not let it go,” he added.

Justice Aqeel said the challenges to the 26th Amendment were fixed before the constitutional bench just because of the present case. He regretted decisions of where to fix the matter were being taken by a “research officer”.

“[This way] we don’t know after raising the issue, the composition of the bench may be changed again tomorrow,” he pointed out.

The registrar responded, saying it was “not just one research officer but an entire section of research officers of the court”.

Justice Shah emphasised that even the regular committee could not ignore a judicial order.

Senior counsel Barrister Salahuddin Ahmed, however, contended that the matter relating to the jurisdiction of the regular bench as well as that of the contempt matter should be referred to the full court comprising all SC judges.

Additional Attorney General (AAG) Chaudhry Aamir Rehman wondered if the court was still looking into the decision of the regular committee, then why the additional registrar could be tried for contempt.

Advocate Shahid Jameel suggested the court to order restoring the three-judge bench that had initiated the contempt proceedings but later reduced to two judge bench. At this, Justice Aqeel observed that the contempt matter can be heard by any bench.

But the hearing, which earlier was supposed to resume on Wednesday, has been de-listed and may not be conducted.

Judges’ letter

Earlier, in a three-page letter to the heads of regular and constitutional committees, Justice Shah, Justice Malik and Justice Aqeel highlighted that the failure of the court office to comply with a judicial order not only undermines the institution’s integrity but a defiance of the settled laws, which clearly states that administrative orders cannot take away the jurisdiction of the bench taking cognizance of a matter.

“It also raises serious concerns about the independence of the benches and such non-compliance constitutes contempt of court and erodes public confidence and trust in the judiciary, damaging its reputation as a fair and impartial arbiter of justice.”

The letter said the propriety demands that in order to maintain independence, transparency, comity of judges, and smooth functioning of the court, the Jan 16 judicial order passed by the court be complied with and the office may be directed to fix the aforementioned case at 1pm on Tuesday, as per the judicial order and the contents of this letter.

Published in Dawn, December 22nd, 2024