Justice Shah wonders if SC can hold own committee in contempt
• Two-judge bench reserves judgement in jurisdiction case • Amici advise court not to refer matter to full bench via judicial order
ISLAMABAD: Justice Syed Mansoor Ali Shah on Thursday raised the question whether the Supreme Court could hold the committee, formed under the Practice and Procedure Act (PPA), in contempt for failing to comply with a judicial order.
The senior puisne judge underlined that disregarding a judicial order could have serious consequences.
The remarks by Justice Shah, who was presiding over a two-judge bench, came during the hearing of a case about the non-fixation of a matter before a regular bench, as well as contempt proceedings against Additional Registrar (Judicial) Nazar Abbas.
“We have the authority to issue contempt of court notices, but will refrain from doing so, as this matter involves the office of the chief justice of Pakistan (CJP) and senior judges who are members of the committee,” Justice Shah observed.
The bench, also comprising Justice Aqeel Ahmed Abbasi, reserved its decision on whether the issue should be referred to a full court comprising all the judges of the Supreme Court, or not.
The bench had framed two questions: whether the two committees formed under the PPA and Article 191A of the constitution have the authority to withdraw a case from the regular bench hearing serious questions of constitutional law relating to its jurisdiction and whether these committees can, by an administrative order, undo the effect of a judicial order, whereby next date of hearing of a specific case had been fixed before a regular bench.
On Thursday, Attorney General for Pakistan (AGP) Mansoor Usman Awan told the court that under Rule 27 of SC Rules 1980, this bench cannot refer the instant matter to the full court since it was not a properly constituted bench. Thus, he added, it also cannot proceed with the contempt proceedings.
Instead, he argued, the court should send the case to the CJP to consider whether to proceed with the contempt matter, adding that if the court believes that there was any deficiency in the PPA, then Article 191A does not bar the full court to consider the issue while sitting on the administrative side, but not on the judicial side.
Earlier, one of the amici, Ahsan Bhoon, contended that it was not appropriate to refer the present matter to the full court through a judicial order.
It is the exclusive domain of the constitutional bench to hear the present matter under Article 191A(3) and therefore the committee had earlier rightly referred the case to the constitutional bench.
If any conflict arises, he said, the present court will always send the matter to the CJP to be placed before the committee concerned. Even when the bench took cognisance of the jurisdiction issue, propriety demanded it should have sent the case to the committee concerned for its onward reference to the constitutional bench after objections were raised whether the regular bench can proceed with the matter.
The counsel contended that the bench cannot issue directions for full court through a judicial order since it will create chaos in society.
When Justice Shah observed that the court’s only intention was to save the institution of judiciary, the counsel replied that many were hell-bent on destroying the institution. “Here everybody wants to have parliament [and] court — even judgements — of their choice,” he pointed out, adding that “We should not be grinding our own axe here.”
Constitution’s backing
Mr Bhoon emphasised that the administrative decision of the committee to withdraw and fix the case before the constitutional bench had the backing of the Constitution since the PPA had already been upheld by the SC’s full court.
Referring to Article 190, which commands all executive authorities to come in aid of SC, he said the court was getting into the wrong argument, adding that in this case, the meaning of ‘executive’ was different.
He said the bench can refer the matter back to the committee to consider whether the judicial order of the present bench can be implemented or not.
He said the present regular bench was the creation of the committee under the PPA.
Earlier Khawaja Haris Ahmed, also an amicus, contended that neither the Contempt of Court Ordinance 2003 nor any provision of the constitution envisaged adjudication of any such issue in contempt proceedings.
Pursuant to 26th Amendment, which is still intact, the power to constitute benches has been conferred upon the two committees respectively, he said.
The very fixation of the case before the bench was violative of Article 191A (3) and (4) read with Article 175(2) of the Constitution as well as in view of Section 2 of the PPA.
As such, if the cases actually stood withdrawn from the bench by the committee, it was not simply pursuant to an administrative order while overriding a judicial order, but by the mandate of law and the Constitution, he said.
He argued that the Jan 16 judicial order evidently was per incuriam, Thus, this is not a case of an administrative order trumping a judicial order, rather it is a case of the law and the Constitution prevailing over an order which was manifestly per incuriam, he contended.
Published in Dawn, January 24th, 2025