Pakistan’s senior Supreme Court judge Justice Mansoor Ali Shah raised serious concerns over potential threats to judicial independence if cases are withdrawn from benches due to perceived government opposition.
The remarks came during a hearing on a contempt of court case, presided over by a two-member bench that included Justice Aqeel Abbasi. The case centers on delays in scheduling a hearing regarding bench powers, which Justice Shah said could set a troubling precedent.
The hearing
At the start of the hearing, Justice Shah pressed the Supreme Court Registrar for an explanation about why the case was not scheduled despite a judicial order. The Registrar claimed the case had been erroneously assigned to a regular bench instead of a constitutional one.
However, Justice Abbasi was skeptical. “If it was an error, it had been ongoing for a long time. Why was it suddenly corrected now?” he asked. “Perhaps the real mistake was including me in the bench, as I had already heard this case in the high court.”
Justice Shah questioned the role of the Supreme Court’s Practice and Procedure Committee in the matter, asking why a note was sent to the committee when a judicial order had already been issued.
The Registrar’s note contradicted earlier statements, suggesting the formation of a new bench based on a January 16 directive. Justice Shah highlighted that the original order explicitly stated which bench should hear the case.
“When a judicial order is in place, the committee’s role ends there,” Justice Shah said. “Retrieving cases already taken up by a bench undermines judicial independence. This could lead to the withdrawal of cases that might result in judgments unfavorable to the government.”
Justice Abbasi added, “At least this led to the constitutional amendment case being scheduled, which had faced significant delays. But why was a tax law case withdrawn, where no constitutional amendment was involved?”
Justice Shah revealed that two committee meetings were held on January 17. He declined to attend one of them, calling it inappropriate given that he had already issued a judicial order.
Judicial orders vs. administrative overrides
“How can an administrative committee override a judicial order?” he asked.
The court appointed senior lawyers Hamid Khan and Munir A. Malik as amici curiae (an impartial advisor to court) to provide expert opinions on whether a judges’ committee can override judicial orders and reassign cases.
The Additional Attorney General objected to the framing of these questions during contempt of court proceedings. Justice Shah assured him, “You will be heard.”
Subsequently, the court adjourned further proceedings in the bench powers case until Wednesday.
What’s the issue?
On Monday, a case challenging the bench’s jurisdiction was transferred from a regular bench to the constitutional bench, raising concerns about a conflict of interest. The case has been rescheduled for Jan. 27.
Adding to the controversy, the case was initially assigned to Justice Mansoor Ali Shah, a senior Supreme Court judge and contender for chief justice. Shah has been a vocal critic of the 26th Constitutional Amendment, which led to the formation of constitutional benches.
To underline his opposition, Shah, along with five other senior judges, boycotted the farewell ceremony of former Chief Justice Qazi Faez Isa in October, calling Isa “an ostrich with his head in the sand.”
Critics argue that the amendment has created a dual justice system, with separate benches hearing cases, resulting in confusion about jurisdiction and authority.
