Committee, contempt, and constitutional bench: verdict reserved

ISLAMABAD: The Supreme Court bench, under Justice Mansoor Ali Shah began the hearing of the ‘power of benches/contempt of court’ case again today. Judicial Assistant Hamid Khan and Ahsan Bhoon presented arguments. Here’s how the proceedings went:

HAMID KHAN’S COMMENTS

Justice Mansoor asked, “Can a judicial order be changed with the administrative side?” Hamid Khan responded that a court order cannot be changed with an administrative order.

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Then Justice Mansoor asked if the judges’ committee could have withdrawn the case in the presence of a judicial order. To this Hamid Khan said that it shouldn’t happen that some judges are given less power while others receive more. “This question is different,” Justice Mansoor responded, adding, “If we were hearing the case of interpretation of Article 191A, this question could have been raised. The case before us [now] is related to the withdrawal of the case by the judges’ committee.”

Justice Mansoor said that Chief Justice Yahya Afridi and Justice Aminuddin Khan are part of the judges’ committee. “Initially, the two-member judges’ committee ignored the judicial order. If the committee ignores the judicial order, can the matter go to the full court?” he inquired.

Justice Aqeel Abbasi added that there is confusion on this matter.

Hamid Khan answered “The Supreme Court has been formed under Article 175. Judicial power has been delegated to the entire Supreme Court. The definition of the Supreme Court is also clear; all judges are included. It cannot be said that only a specific judge can use the power of the Supreme Court.”

“How do you view Article 191A?” Justice Abbasi asked, adding, “In the past, it was the Supreme Court’s authority to make rules on matters like the formation of benches.”

“Now some of the powers of the Supreme Court have been abolished; but that would become the matter of the 26th amendment,” Justice Abbasi said.

Justice Mansoor asked Hamid Khan, “Is there any country in the world where the bench is made by the executive instead of the judiciary? Do you have any such example in mind?”

“There is no such thing,” Hamid Khan answered.

Then Justice Mansoor asked “Under the Supreme Court Rules 1980, will the Chief Justice of Pakistan form a full court or will a committee form it? Can a judges’ committee be asked to form a full court through a judicial order?”

Hamid Khan responded, “Section 2A of the Regular Judges’ committee Act is not compatible with Article 191A. Parliament can increase the powers of the judiciary, but it cannot decrease it. I want to give an example of Article 191A.”

Justice Mansoor responded, “Its power is different from the present case.” He added, “These questions are related to the 26th Constitutional Amendment.”

“Article 191A mentions constitutional benches,” Hamid Khan said, adding, “There is no mention of a constitutional bench in the Supreme Court rules. There can be a constitutional bench consisting of at least five judges.”

He added, “In this situation, three constitutional benches can be formed, the senior one among them will be the head. Article 191A is not compatible with Section 2A of the Judges’ committee, therefore it is against the constitution.”

AHSAN BHOON’S COMMENTS

Justice Mansoor posed similar questions to the other judicial assistant Ahsan Bhoon, who was appointed yesterday after Attorney General Mansoor Usman Awan pointed out that the previously appointed advisors were not suitable.

“Some [similar] decisions were made in the past.” Ahsan Bhoon said.

Justice Mansoor responded, “[Not in the past, rather recently] the decision on reserved seats was taken. Don’t go so far in the past.”

“In the past, a constitutional article was made ineffective in the name of interpretation,” Ahsan Bhoon said.

Justice Mansoor quipped, “Nothing like that is happening today. Presently, everything is fine.”

Ahsan Bhoon said, “The present will be written now. No decision should be influenced by past challenges.”

Justice Mansoor asked, “We are not the constitutional bench, what should we do? We are just chatting.”

Ahsan Bhoon said, “That is why we wanted a constitutional court to be formed.”

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Justice Mansoor quipped again, “You could have pushed a little more and formed a constitutional court instead.”

Ahsan Bhoon replied, “We tried to push.”

“We should have reviewed Article 191A. But during the review, the case was withdrawn from the bench,” Justice Mansoor said.

“The references given in this case have become ineffective after the 26th Amendment,” Ahsan Bhoon responded. Addressing Justice Mansoor he said, “You are part of the Judges Committee, whether you sit or not is a different matter.”

“I am also a member of the Judicial Commission,” Justice Mansoor responded, to which Ahsan Bhoon said, “Judges are also being appointed in the Judicial Commission meeting.”

Justice Mansoor said, “The judges we nominate get only one vote, and even that vote is ours.”

Moving to the debate about the assigning of cases, Justice Mansoor said, “The Supreme Court has 50,000 cases, the question is to whom will the cases go first and then how to forward them.”

KHAWAJA HARIS TAKES THE ROSTRUM

“How did the committee decide to withdraw the case despite the judicial order?” Justice Mansoor repeated the question.

“Where did judiciary’s freedom go then? We did not schedule the case ourselves. Let’s say it was filed by mistake, but then one question arose. The case was withdrawn on the basis that we cannot even ask questions. If the bench has given a decision, an appeal can be filed against it, but the case cannot be withdrawn,” Justice Mansoor said.

He continued, “Should the judicial order be reviewed judicially or replaced with an administrative order? Do you think that the committee can withdraw the case while it is being heard by the bench?”

Khawaja Haris, who was appointed as the judicial advisor along with Bhoon yesterday and who is also representing the Ministry of Defense in the civilians’ trials in military courts, responded, “I think the committee can withdraw the case.”

Justice Abbasi added, “If the hearing of a case has not yet started, the committee can withdraw the case but if a [judicial] order has been made on the case, can the committee still withdraw the case?”

Justice Mansoor said, “If the committee is given such power then it can withdraw any case, even if there is a case in which we have jurisdiction.”

He posed another question, “In 191A, the Judicial Commission forms a bench. Is there [a provision] in the constitution that the administration can also form a bench?”

He added, “The Practice and Procedure Act was kept so that the judiciary forms a bench for it. Now if someone other than the judiciary forms a bench, then a question arises on it.”

Khawaja Haris responded, “In civil and criminal cases, the regular bench can hear constitutional questions. However, on Article 185-3, the issue of jurisdiction comes up.”

Justice Mansoor said, “[Recently] we heard a case of 63A, in which the decision was given by the regular bench. Here the committee took the case back from us and placed it in front of the constitutional bench.”

Khawaja Haris said, “The Practice and Procedure committee cannot directly refer a case to the constitutional bench. Only the constitutional committee can refer a case to the constitutional bench.”

“If the other committee did this, it did wrong,” Khawaja Haris added. However, he clarified, “I found out that the bench that was hearing the case earlier was not on the schedule for the next week. In such a situation, the committee is authorised to refer the case to another bench.”

“The committee’s withdrawal of the case should be seen in the context of its constitutional mandate. The exercise of this authority should not be judged on parameter of violating a judicial order,” Khawaja Haris added.

Practice and Procedure is still an enforceable law, Khawaja Haris said, adding that a ​​bench of the Supreme Court can issue any order in accordance with the law.

“Can the administrative committee review the validity of a judicial order?” Justice Mansoor Ali Shah asked, adding, “If our order of January 16 is wrong, won’t it be challenged in the judicial forum itself?”

Khawaja Haris replied, “You are right here, but I am only looking at it from a different perspective.”

Justice Abbasi queried, “Isn’t it written in the Constitution that it is mandatory for all executive authorities to obey the order of the Supreme Court? Isn’t this constitutional provision applicable to the Administrative Committee of the Supreme Court?”

Justice Mansoor added, “If the committee starts withdrawing judicial decisions, the independence of the judiciary will come into the hands of the committee.”

Ahsan Bhoon responded to this, “Article 191A is a part of the constitution which was declared null and void by a judicial forum. Both judges and committees have their separate duties.”

Justice Mansoor reiterated, “Has the committee done the right thing by withdrawing it?”

Ahsan Bhoon said, “The committee did the right thing by withdrawing it from the bench. If there is any issue regarding the withdrawal of the case, the Chief Justice should again place the matter before the committee.”

He added, “A full court cannot be formed by judicial order. There is a respect for the institution.”

Justice Mansoor responded, “We are doing this exactly [to ensure] that the institution is respected; so that our institution does its job properly.”

Ahsan Bhoon said, “Every person here wants a parliament, institutions and judges of their choice.”

Justice Aqeel continued Bhoon’s thought, saying, “They also want the decisions of their own choice.”

Justice Abbasi said, “Legal matters are resolved by benches and courts. The committee and the rules are all respectable for us.”

Ahsan Bhoon said, “I keep learning from my elders, young people are also present in the courtroom.”

“The Chief Justice should place the matter before the committee,” he reiterated, adding, “The power of Parliament is to legislate with a two-thirds majority.”

Justice Abbasi quipped, “Which committee? 2 or 2A?” Laughter ensured in the court room at this.

Bhoon responded, “Both committees have been formed under the law.”

Justice Mansoor said, “Many questions have come to light in the case. The matter should be sent to the chief justice to form a full court bench.”

Ahsan Bhoon cautioned, “If the matter is sent to the chief justice for a full court and if a full court is not formed, then the problems will increase.”

“You already know that a full court will not be formed?” Justice Mansoor responded.

ATTORNEY GENERAL’S COMMENTS

Attorney General Mansoor Usman Awan came to the rostrum and began his arguments.

Justice Abbasi said that Additional Registrar Nazar Abbas – who had been dismissed for contempt of court after the hearing was not scheduled – had said that he has been made a scapegoat. “We have no interest in contempt of court. Tell us what the solution is,” Justice Abbasi said to the Attorney General.

“Contempt of court proceedings are limited,” Attorney General Awan answered, “If we want to get out of contempt of court proceedings, the matter should be sent to the Chief Justice.”

Justice Mansoor said, “If a full court hears the case, what is the problem with that?”

“You have limited hearing authority,” the Attorney General answered, adding, “The court should send this matter to the committee. If the court was hearing Article 184 or an appeal, then it would have been a different matter.”

Justice Mansoor said, “It is the Chief Justice’s choice to form a full court or not.”

After the completion of the arguments of the judicial advisors, Justice Mansoor said, “We want the matter to move towards a solution. A solution should be found once and for all. We have the authority, we could have issued a contempt of court notice to the committee. But we want the matter to be sent to the full court.”

The two-member bench comprising Justice Mansoor and Justice Abbasi reserved the verdict.