Withdrawing cases from the judicial bench would undermine judicial independence, Supreme Court judge Justice Mansoor Ali Shah said on Tuesday.

He said this while presiding over a case convened in the apex court to address a contempt notice issued to the additional registrar for not scheduling the case concerning the powers of benches. A two-member bench comprising justices Shah and Aqeel Abbasi heard the case

At the outset of the hearing, the SC registrar appeared in the court. The judges inquired why the case had not been scheduled despite a judicial order.

The registrar stated that the case was meant for a constitutional bench but had mistakenly been assigned to a regular bench.

Justice Abbasi questioned how such a long-standing error could have gone unnoticed. The judge added that the error was only in including him on the bench, as he had already heard the case in the high court.

Justice Shah wondered how the Practice and Procedure Committee convened regarding the issue. “Did the committee call the meeting on its own, or did you request it?” he inquired.

The registrar replied: “We wrote a note to the committee.”

The senior puisne judge pressed, “Why was a note written when a judicial order was already in place? Our order specified which bench the case should be assigned to.”

The court requested to see the note that had been sent to the committee, to which the registrar presented the document.

Justice Shah remarked that the note does not acknowledge any errors. He pointed out that while it states an order was issued on January 16, it is being used as the basis for forming a new bench. “In the order, we specified which bench the case should be assigned to?”

The SC registrar responded that the Practice and Procedure Committee had referred the case to the Constitutional Bench Committee. The committee scheduled cases related to constitutional amendments for January 27. After the amendment, it reviewed which cases could be assigned to the bench and which could not.

Justice Shah said the case might have inadvertently been overlooked by the registrar. But he added that the committee’s role ends once it was on the bench. “If the committee were to withdraw ongoing cases, it would undermine the independence of the judiciary. If there is a perception that a decision may go against the government, the case could simply be withdrawn from the bench.”

Justice Shah remarked, “This case may have been overlooked by you, but it has come before us. Surely, Allah has a plan in place for such matters.”

Justice Abbasi added that at least the constitutional amendment case has been scheduled for hearing. “There was a lot of noise earlier about the amendment cases not being listed for hearing, but now we have a case on the constitutional amendment. In the tax case, what constitutional amendment needed to be reviewed that led to its withdrawal?”

In light of such developments, the court summoned the attorney general for Pakistan for assistance.

The senior puisne judge emphasised that the documents being presented were a defence by the additional registrar judicial. “The court will decide whether the arguments presented in the defence are valid or not.”

Furthermore, Justice Shah inquired, “From where does the Practice and Procedure Committee derive the authority to withdraw a case?”

The registrar stated that the committee has the authority to schedule cases and can also withdraw them.

Justice Shah responded that the bench would clarify in this case whether they can withdraw it or not. “If the judges’ committee has issued any orders regarding this, please present them. The judges’ committee does not have the authority to withdraw cases from the judicial bench.”

The registrar countered, explaining that the Practice and Procedure Act is an Act of Parliament, and under the law, the judges’ committee could withdraw cases from the judicial bench.

The senior puisne judge said, “If this continues, then tomorrow, a case could be withdrawn simply because a decision appears to be against the government. There were two meetings held on the same day while the case was still in the judicial bench.”

Justice Abbasi stated that the judges’ constitutional committee noted in its minutes that the case regarding the 26th Constitutional Amendment was to be scheduled for hearing before eight judges, which was why it was being sent to the constitutional bench. “We were not even hearing cases against the 26th Constitutional Amendment.”

He emphasised that the role of the Practice and Procedure Committee was extended only until the case was first scheduled. Once the case was underway, the committee’s responsibilities concluded, the judge said and added that it had been stated that the matter had gone to the researcher.

The registrar responded that the researcher has been mentioned repeatedly; it’s not just one person, but a whole cell. “There is a research cell in the Supreme Court, as you are aware.”

At the registrar’s response, Justice Shah said the bench wanted to hear the additional registrar.

The registrar informed the court that the additional registrar was on leave due to illness and would respond to the court upon his return.

Justice Abbasi remarked, “We are unaware of the future of the current bench. We are hearing the case today, but there may not even be a bench tomorrow. If a sharp question is asked, this bench could be dissolved as well. Registrar, perhaps you should note down that this bench should be disbanded.”

Justice Abbasi further stated that potential orders could be issued in cases of contempt of court.

Justice Shah indicated that they would review the orders presented by the committee in their defence.

In the proceedings, Barrister Salahuddin stated, “The committee or research officer can only write a note on which bench the case should go to. Determining whether the case is to be heard by the constitutional bench is the court’s responsibility. It is essential to judicially review the committee’s ongoing orders. One approach could be to schedule a case regarding the powers of benches in the full court.”

Justice Shah wondered whether any bench can form a new bench under judicial orders.

Barrister Salahuddin responded that historically, the court has sent cases to the chief justice or committees to fulfil administrative procedures, and both the chief justice and the committees were bound by judicial orders.

Also, read this

SC overturns death sentence for Wah Cantt Suicide Attack suspect

Justice Mansoor Ali Shah writes another letter on judges appointments

JCP proposal to include all SC judges in constitutional bench rejected by seven to six votes

Justice Abbasi pointed out that while the case regarding bench powers is before them, they were hearing a contempt of court case. He questioned whether they could issue such a judicial order in this context.

Barrister Salahuddin stated that in the Asma Jilani and the Ziaur Rehman case, it was established that judicial power cannot be taken away. He noted that some judges possess greater authority while others have less, and expressed his desire to discuss the formation of a full court.

Justice Shah acknowledged that a request had been made to form a full court for the hearing regarding the 26th Constitutional Amendment.

Subsequently, the court appointed senior lawyers Munir A Malik and Hamid Khan as legal advisers and announced that it would hear the attorney general for Pakistan and other lawyers tomorrow (Wednesday). The court emphasised the significance of determining whether the judges’ committee can withdraw cases from the bench.

The hearing of the case was adjourned until tomorrow.