“Even if we decide the case, what will happen? Who is going to stop us,” says senior puisne judge
Special Correspondent
ISLAMABAD: Amid prevailing uncertainty regarding the future of various cases in light of the issue of constitutional benches, the Supreme Court’s senior puisne judge Justice Mansoor Ali Shah has raised questions on the constitutionality of existing benches until designated constitutional ones are not formed.
“Until a constitutional bench is formed, are we unconstitutional?” questioned Justice Mansoor during the proceedings of a tax-related case in the apex court being heard by a three-member bench including Justices Ayesha Malik and Aqeel Abbasi on Monday.
The judge’s remarks come after the ruling coalition bulldozed the 26th Amendment in both the National Assembly and the Senate last month provisioning inter alia, the formation of designated constitutional benches at the apex court and the high courts.
The contentious constitutional tweaks have since then seemingly resulted in a rather uncanny ambiguity regarding the future of various cases and the domain of the benches hearing them.
During the hearing of the aforesaid case, Justice Ayesha pointed out that Justice Mansoor-led bench was an “ordinary one” and the case was supposed to be heard by a constitutional bench instead.
“At present, there is no constitutional bench so what is to be done with this ‘unconstitutional bench’,” responded the senior puisne judge.
Wondering whether constitutional cases won’t be heard till a designated bench is formed, Justice Mansoor said that no one could question them even if they heard the said case.
“Even if we decide the case, what will happen? Who is going to stop us? [….] The review will also come to us, and [then] we can say that we have the [relevant] jurisdiction,” he remarked while saying that the issue has been repeatedly raised whether a given case is to be heard by a regular bench or a constitutional one.
In response to Justice Aqeel’s query whether the three-member bench could hear the case before them, Justice Mansoor said: “Give [it] some time and see what happens.”
Meanwhile, Justice Ayesha maintained that the SC Practice and Procedure Committee would decide the matter, which she added, would take some time.
Noting that they could not provide any viewpoint, Justice Mansoor then adjourned the case indefinitely.
This isn’t the first time Justice Mansoor has commented on the said issue as last week, while hearing an over-billing case involving Sui Northern Gas Pipelines Limited (SNGPL), he said that every case should not be transferred to a constitutional bench.
It is pertinent to know that the Judicial Commission of Pakistan (JCP), on November 5, constituted a seven-member constitutional bench under Justice Amin-ud-Din Khan with a 7-5 decision.
The constitutional bench includes judges from all provinces; Justice Amin-ud-Din and Justice Ayesha Malik from Punjab, Justice Muhammad Ali Mazhar and Justice Hassan Azhar Rizvi from Sindh, Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan from Balochistan and Justice Musarrat Hilali from Khyber Pakhtunkhwa (KP) for a term of two months.
