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ISLAMABAD: A six-judge bench of the Supreme Court headed by Justice Jamal Khan Mandokhail on Monday disposed of the intra-court appeal (ICA) of additional registrar (judicial), who had requested the court to quash the contempt proceedings initiated by a two-judge bench.
However, a ruling by the smaller bench for defying a judicial order escalated tensions when Justice Mandokhail highlighted potential repercussions for violating the Constitution.
“We have taken oath under the Constitution and not under any judgement,” emphasised Justice Mandokhail, who headed the appellate bench that heard the ICA of Additional Registrar (Judicial) Nazar Abbas.
Would non-adherence to the requirement of Article 191A, inserted into the Constitution through the 26th Amendment, amount to violation of the Constitution and oath of office taken by judges, he wondered.
Justice Mansoor seeks full court to settle jurisdiction row
The bench, however, disposed of the ICA unanimously, though Justice Mandokhail said he would spell out his reasons for the decision.
Justice Athar Minallah and Justice Shahid Waheed said they were disposing of the case as the appeal had become infructuous after its withdrawal.
Shahid Kamran, representing the additional registrar, had sought the withdrawal since the two-judge bench hearing the contempt case had earlier in the day discharged the show-cause notice issued to the appellant.
The bench was headed by Justice Syed Mansoor Ali Shah, the senior puisne judge.
The smaller bench in its 20-page judgement, issued in the morning, described the present proceedings as unsavoury, but discharged the contempt notice. It referred the matter to CJP Yahya Afridi for convening a full court to decide once and for all the question of jurisdiction of the regular bench.
But the judgement held that the regular committee under Practice and Procedure Act (PPA) 2023 and constitutional committee under Article 191A of the Constitution were not legally authorised to take the administrative decisions of Jan 17 in violation of the judicial order by referring the matter to the constitutional bench, adding that in this background, it appeared as if the matter has to proceed further against the members of the two committees that also include the CJP.
“However, judicial propriety and decorum demand that the question be considered and decided by the Full Court of the Supreme Court so that it was authoritatively decided once and for all,” the judgement explained.
However, the directions made in the judgement left the members of the six-judge bench to wonder how a smaller bench could hold judges of the appellate bench in contempt without even following the procedure meant for contempt of court.
Justice Minallah and Justice Waheed wanted to close the proceedings on the grounds that after the discharge of the contempt notice, the matter has become infructuous, especially when the matter regarding violation of the judicial order was not under challenge before the court. “When the matter is not before the court, can we hear it on suo motu,” wondered Justice Waheed.
At one point, Justice Musarrat Hilali wondered: “What’s going on behind the scenes in the present case when ordinary cases involving constitutional interpretation are referred to constitutional benches by regular benches in routine.”
The smaller bench should have confined itself to discharging the contempt notice instead of commenting on the three-judge constitutional committee, observed Justice Mazhar, who also wondered would the CJP convene the full court, when he himself has become an alleged contemnor.
Additional Attorney General Chaudhry Aamir Rehman argued that after the 26th Amendment, cases involving constitutional interpretation had to be referred to the constitutional bench automatically.
Published in Dawn, January 28th, 2025
