• Govt plans to challenge Jan 27 judgement by Justices Shah, Abbasi on constitutional grounds
• SC official reinstated after removal order withdrawn
• Justice Ayesha Malik calls for safeguarding sanctity of judicial orders

ISLAMABAD: The Constitutio­nal Bench (CB) of the Supreme Court, on Tuesday, declared the Jan 13 and Jan 16 orders of a two-member bench ‘non-est’, meaning that it was invalid, nonexistent, or without legal effect.

On the other hand, the federal government informed the seven-judge CB of its intention to challenge the Jan 27 judgement of the two-judge regular bench, citing it as violative of Section 191A(5) of the Constitution.

Through an order passed a day earlier, Justice Mansoor Ali Shah and Justice Aqeel Abbasi had assumed jurisdiction to hear a challenge to the Customs Act, while discharging a contempt notice it had issued against Additional Registrar (Judicial) Nazar Abbas.

The bench had also referred the matter to Chief Justice of Pakistan (CJP) Yahya Afridi, requesting the convening of a full court to definitively resolve the question of the regular bench’s jurisdiction.

The smaller bench’s judgement further held that the regular committee under the Supreme Court (Practice and Procedure) Act, 2023, and the constitutional committee under Article 191A of the Constitution were not legally authorised to make administrative decisions, such as the Jan 17 order that violated a judicial directive by assigning the matter to the Constitutional Bench.

Nazar Abbas, who was removed on Jan 21, was reinstated to his post after the competent authority withdrew the removal order with immediate effect.

On Tuesday, the seven-judge CB headed by Justice Amin-ud-Din Khan observed that the superstructure built on the Jan 13 and 16 orders would collapse, and held that the fixing of the original appeal of the Revenue Division (FBR) against the August 2020 Sindh High Court judgement before the CB was appropriate.

The SHC had struck down Section 221-A(2) of the Customs Act, 1969, introduced through the Finance Act, 2018, ruling that the legislature had attempted to validate a constitutional defect without making the required constitutional amendment.

The CB observed that the committees constituted under the Supreme Court (Practice and Procedure) Act, 2023, as well as under Article 191A of the Constitution, were lawful and appropriately formed.

While granting leave to appeal to the FBR, the CB fixed the matter before itself and issued a notice to Attorney General (AGP) Mansoor Usman Awan under Order 27A of the Code of Civil Procedure (CPC). The court also directed that the criminal original case, under which a show-cause notice had been issued to the additional registrar, be annexed with the main case.

During the hearing, Justice Muhammad Ali Mazhar questioned whether the present CB could proceed further in the presence of the Jan 27 order issued by the smaller bench, headed by Justice Syed Mansoor Ali Shah.

In response, AGP Awan informed the court that the government intended to challenge the smaller bench’s decision, in which the two-judge bench had assumed jurisdiction over the FBR’s appeal against the SHC judgement. Formal proceedings in this regard are set to commence on Feb 1, he added.

Justice Jamal Khan Mandokhail, however, emphasised that concerns about the independence of the judiciary were shared by everyone, not just a select few, and stressed the importance of addressing such matters appropriately.

The CB also expressed surprise over the smaller bench’s Jan 16 order, which stated that the case should be considered part-heard. “From where has this term come that the matter should be considered part-heard?” Justice Muhammad Ali Mazhar wondered.

The AGP explained that there were two Jan 13 orders: one setting Jan 27 as the next date and another listing the case for Jan 16. This, he said, showed that the date of the case had been changed later.

Justice Mazhar voiced concern, fearing that the smaller bench’s order had unsettled and frightened the judicial staff responsible for providing administrative assistance.

Justice Malik’s note

Meanwhile, Justice Ayesha A. Malik, who had disassociated herself from hearing the Customs Act case, said in a two-page note that as judges, “we must strictly adhere to the distinction between judicial orders and administrative orders and we must preserve and safeguard the sanctity of judicial orders”.

“Most of all we must ensure that our orders are complied with and not overlooked, contravened or evaded by anyone,” Justice Malik said, adding that she would not like to hear these cases in order to protect and preserve the sanctity of the original proceedings and the Jan 16 judicial order.

Published in Dawn, January 29th, 2025