KARACHI: The Sindh High Court on Tuesday decided not to fix the constitutional petitions pending before it for hearing till formation of constitutional benches after a provincial law officer informed it that the Sindh Assembly had approved a resolution necessary for creation of such benches for high courts.

A two-judge bench comprising SHC Chief Justice Mohammad Shafi Siddiqui and Justice Jawad Akbar Sarwana said the effect of such resolution was that no bench of the SHC other than a constitutional bench could exercise jurisdiction vested in the high court under various clauses of Article 199 of the Constitution.

However, the bench ruled that the rest of the jurisdiction may be exercised by the existing/regular benches of the SHC as per rosters assigned to them and will continue to exercise leftover jurisdiction.

On Tuesday, the bench took on a constitutional petition, filed by a police officer against placement of his name on the exit control list, for hearing, but assistant advocate general of Sindh Mehran Khan informed it that the Sindh Assembly had approval a resolution necessary for creation of such benches on Nov 4.

Says after approval of a resolution by Sindh Assembly, only constitutional benches can hear such pleas

The bench in it order said that as per the AAG the resolution, as required in terms of Article-202(7) of the Constitution was passed and Article-202A required the constitution of constitutional benches which could have been triggered subject to the passing of the resolution by the provincial assembly.

“As noted above and informed by the learned AAG now that the provincial assembly has passed such resolution to give effect to the provisions of this Article, i.e. Article-202A, the effect of such resolution is that no bench of a high court other than a constitutional bench shall exercise jurisdiction vested in the high court under sub-paragraph (i) of paragraph (a) and paragraph (c) of clause (1) of Article-199. Rest of the jurisdiction may be exercised by the Benches to whom the rosters have been assigned (excluding above) and will continue to exercise leftover jurisdiction. With this understanding, we deem it appropriate that unless the Constitutional Benches are carved out by the Commission, such matters, as identified in sub-clause (3) of Article-202A, may not be fixed,” it added.

It may be recalled that after the enactment of the 26th Constitutional Amendment, various lawyers used to raise the issue of jurisdiction before regular benches of SHC during the hearing of constitutional petitions.

Thereafter, on Oct 23 the same bench had ruled that at that point of time there was no impediment for regular benches of the SHC to hear the constitutional petitions until passing of such resolution by the provincial assembly.

It had also noted that the newly framed Article 202A was related to formation of constitutional benches of high courts, but its sub-clause (7)(b) also said, this article shall come into force if in respect of a high court the respective provincial assembly, through a resolution passed by majority of the total membership of the joint sitting or the respective provincial assembly, as the case may be, give effect to the provisions of this article.

The Sindh Assembly has become the first provincial legislature to pass such resolution, putting the constitutional jurisdiction of the SHC to standstill until the reconstituted Judicial Commission of Pakistan will form constitutional benches for the SHC.

Published in Dawn, November 6th, 2024