Justice Mansoor Ali Shah, a senior Supreme Court judge, has raised concerns about the implications of withdrawing cases from judicial benches, emphasizing that such actions could compromise the independence of the judiciary.
Referring to recent developments, Justice Shah questioned whether committees have the authority to retract cases when it appears that the rulings might not align with the government’s preferences.
His remarks came during a contempt of court hearing on Tuesday, conducted by a two-member bench he presided over. The case arose after the Supreme Court Registrar failed to schedule a hearing on a matter concerning bench powers despite explicit judicial instructions.
At the outset of the hearing, the bench inquired why the registrar had not scheduled the case as ordered. The registrar explained that the case, originally intended for a constitutional bench, had been mistakenly assigned to a regular bench.
Justice Aqeel Abbasi expressed doubt over the explanation, questioning the timing of the error’s discovery and speculating whether his presence on the bench was a factor, as he had previously dealt with the matter in the high court.
Justice Shah also sought clarity on the role of the Practice and Procedure Committee in the issue, asking whether it acted autonomously or responded to external requests. The registrar admitted to sending a note to the committee, prompting Justice Shah to demand its submission. Upon review, the note contradicted the registrar’s earlier claims.
Justice Shah highlighted that the note did not acknowledge any mistake but instead suggested forming a new bench based on a January 16 order, which had already specified the case’s assigned bench. The registrar explained that the Practice and Procedure Committee had forwarded the case to a constitutional bench, which reviewed amendments and scheduled related cases accordingly.
However, Justice Shah asserted that once a case is assigned to a judicial bench, the committee’s role ceases. Allowing committees to retract active cases undermines judicial independence, he argued, questioning if cases could be withdrawn merely due to potential rulings unfavorable to the government.
Justice Aqeel added that the scheduling of the constitutional amendment case had been delayed until it reached their bench, questioning the urgency behind withdrawing cases, especially when no constitutional review was required for related tax matters.
Justice Shah revealed that on January 17, two committee meetings took place—a regular session and another under Article 191-A(4). He noted his absence from the first meeting, deeming his participation inappropriate due to the judicial order. He emphasized that administrative decisions cannot override judicial orders.
He stressed that judicial orders are binding and demanded clarification from the registrar on whether the judges’ committee had issued any directive allowing the withdrawal of cases from a judicial bench.
The senior judge cautioned that such practices jeopardize judicial independence, referencing the registrar’s previous tenure at the Peshawar High Court to underscore his understanding of these principles.
In response, the registrar argued that the Practice and Procedure Law, enacted by parliament, authorizes the committee to withdraw cases. Justice Shah warned that setting such precedents could erode trust in the judiciary, enabling case withdrawals to pre-empt decisions unfavorable to the government.
Given the complexity of the situation, the Supreme Court has appointed senior lawyers Hamid Khan and Munir A Malik as amicus curiae to assist in the proceedings. The bench has also sought input on whether the judges’ committee can modify bench allocations contrary to existing judicial orders.
Additional Attorney General Aamir Rehman contended that such questions cannot be raised during contempt proceedings. Justice Shah assured him that his arguments would be thoroughly considered.
The hearing on judicial bench powers has been adjourned until Wednesday for further deliberation.
