Heading a two-member bench of the Supreme Court, Justice Mansoor Ali Shah on Tuesday observed that unilaterally withdrawing cases from benches risks undermining judicial independence.
During contempt proceedings against an additional registrar of the apex court, he questioned whether committees could withdraw cases if it appeared a decision might go against the government. The contempt proceedings were initiated after the registrar did not fix for hearing a case on Jan. 20 despite court orders to the contrary.
Appearing in court, the registrar said he was acting on instructions of the Practice and Procedure Committee, which had determined the case fell under the purview of the constitutional bench and not the regular bench. He said the case had “mistakenly” been assigned to a regular bench.
Justice Aqeel Abbasi questioned why the error was realized at this stage. He further questioned if his inclusion in the bench—he was not previously part of the three-member bench during the first hearing—was an issue, as he had previously heard the matter in the high court.
Justice Shah then inquired if the Practice and Procedure Committee had convened independently or acted upon a request. The registrar said he had send a note to the committee apprising it of the error. Justice Shah then sought a copy of the note, which appeared to contradict the registrar’s earlier statement. According to the judge, the note did not acknowledge any error and had suggested forming a new bench based on an order issued on Jan. 16.
The registrar then explained that the Practice and Procedure Committee had referred the case to a constitutional bench, which reviewed relevant amendments and scheduled cases accordingly. To this, Justice Shah observed that the committee’s role ended after a case was fixed before a bench. He said allowing committees to withdraw active cases undermining judicial independence. He further questioned whether cases could be withdrawn if decisions went against the government.
Justice Abbasi, meanwhile, said the fixation of the case had led to cases pertaining to the 26th constitutional amendment being fixed for hearing. He questioned the urgency to withdraw this case, noting no constitutional review was required in tax matters.
Justice Shah reiterated that an administrative decision cannot override a judicial order and asked the registrar to clarify whether the judges’ committee had issued any orders permitting case withdrawal from a judicial bench. The registrar maintained that as an act of Parliament, the Practice and Procedure Law granted the committee authority to withdraw cases.
To this, Justice Shah said such precedents risked eroding trust in judicial processes, allowing case withdrawals to pre-empt unfavorable outcomes. The bench then appointed Hamid Khan and Munir A. Malik as amicus curiae to assist the court. Both these lawyers have previously spoken out against the 26th constitutional amendment.
The bench also requested input on whether the judges’ committee can alter judicial bench allocations despite existing orders. Additional Attorney General Aamir Rehman argued the court cannot frame such questions within contempt proceedings. Justice Shah assured him that his arguments would be heard in detail. The hearing was then adjourned until tomorrow (Wednesday).