The Supreme Court on Tuesday removed its Additional Registrar (Judicial) for “erroneously” listing a constitutional issue before a regular court, but did not take its decision to withdraw the case from the regular court, despite a request by the bench members to comply with their judicial review. order.

A three-member regular bench headed by Justice Syed Mansoor Ali Shah and comprising Justice Ayesha Malik and Justice Aqeel Abbasi heard a host of cases where the vires of the Custom Act, 1969 were challenged.

However, an SC committee headed by Chief Justice of Pakistan Yahya Afridi on January 17 directed his office to withdraw these cases from the regular bench and referred them to the Constitutional Bench (CB) Committee constituted under Article 191A of the Constitution for reinstatement on the list.

This move irked the common bench members who issued a contempt notice for the additional registrar (judicial). The bench members also wrote a letter to the committee headed by CJP Afridi.

In the letter, they stated that the office’s failure to comply with a court order not only undermines the integrity of the institution, but also violated a settled law of this court that administrative orders cannot deprive the court of jurisdiction over a case.’

“It also raises serious concerns about the independence of the benches. Such non-compliance constitutes contempt of court and erodes public confidence and trust in the judiciary, damaging its reputation as a fair and impartial judge.”

It said propriety demanded that in order to maintain independence, transparency, civility among judges and smooth functioning of the court, the court order passed by the regular court on January 16 should be complied with.

“The office may be asked to settle the matter by 1pm today [Tuesday]as per the court order and the contents of this letter,” it added.

Despite their letter, the SC’s regular committee did not review its decision to withdraw the case from the regular bench, but removed the assistant registrar “due to serious lapse”

In a statement issued on Tuesday, the SC said that these cases should be rectified before the Constitutional Council, but were mistakenly rectified before the regular bench, “consequently leading to wastage of time, resources of the institution as well as the parties”.

“Briefly it is stated that the said cases were heard before a regular bench of three Honorable Judges. The cases were heard on January 13, 2025, where apart from the merits of the case, the constitutionality of sub-section 2 of Section 11A of the Customs Act was challenged.

“Based on this, the jurisdiction of the Hon’ble Bench was challenged. Subsequently, the proceedings were adjourned till January 16, 2025.

“Realizing the serious lapse on their part, the Judicial Division through a memorandum approached the General Committee under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023.

“Considering the serious nature of the lapse, the Committee met on 17 January 2025 under the chairmanship of the Chief Justice of Pakistan.

“The Committee noted that Clause 3 of Article 191A of the Constitution of the Islamic Republic of Pakistan read with Clause 5 of Article 191A of the Constitution expressly vests such jurisdiction in the Constitutional Council and no one else.

“The General Committee also directed that henceforth all cases falling under Article 191A of the Constitution shall be referred to the Constitution Committee constituted under Article 191A of the Constitution, notwithstanding any order passed by an Ordinary Bench.

“The General Committee directed the Registrar of the Supreme Court to expedite the disposal of all pending cases as well as due diligence of the proceedings initiated daily in this Court to avoid recurrence of such lapses.

“It is worth mentioning that the Constitution Committee also met on January 17, 2025 and decided to dispose of all cases challenging the 26th Constitutional Amendment and Acts. Therefore, a Constitution Bench consisting of eight honorable judges will hear these petitions on January 27, 2025 .”

Meanwhile, the regular bench comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi heard the contempt proceedings initiated against the Additional Registrar (Judicial).

However, due to the additional registrar’s absence due to illness, SC registrar Muhammad Salim Khan appeared before the court and stated that the cases were listed in the general bench “due to pending errors”.

He also contended that the removal of the cases before the courts was not based on malicious intent on the part of the Additional Registrar but a bona fide act taken in accordance with the direction of the General Committee.

During the hearing, Justice Shah and Justice Abbasi wondered how the committee under the Supreme Court Practice and Procedure Act 2023 could, through an administrative order, withdraw a case from the ordinary court which has already seized the case.

The bench also wondered why Justice Ayesha Malik was excluded from the bench on Tuesday. Justice Abbasi said that this division bench could be dissolved following some of their remarks.

It noted that the court is adjudicating certain legal issues on whether a court order can be thrown out by a committee on the administrative side. It will also review how the committee can order the withdrawal of a case from a court that has already seized the case.

The bench appointed Hamid Khan and Muneer A Malik as amicus curiae in this case. The hearing resumes today (Wednesday).

Commenting on the development, lawyer Asad Rahim Khan said that this entire confusion is the result of a refusal to hear the petitions challenging the 26th Amendment.

“A matter that has completely transformed the judiciary should have been brought up on day one; instead it was left in the freezer for three months while the Supreme Court benches wondered about the limits of their jurisdiction,” he added.

Asad stated that it has now finally been brought up for hearing by the Constitutional Council, but this is also no solution, given that the very existence of the Constitutional Bench has been directly challenged. “To state the obvious, a constitutional court cannot decide the fate of the constitutional bench.”

Former Additional Attorney General Tariq Mahmood Khokhar, who is in command of judicial history, commented that this is worse than the attack on the SC in 1997.

“The 26th Amendment and its Fifth Columnists have delivered the supreme judiciary and its role under the control of the executive branch. An apartheid is imposed within the supreme judiciary: an alternative constitutional order with a separation of judges in which some judges are more equal than other.”

Khokhar says the consequences are: a perverse definition of the SC – most judges, including the CJP, are barred from judicial review and determining their own jurisdiction, their court orders are overturned by administrative order, and vires of the 26th amendment have been put on a team.

“It has been settled law since 1803 (in the Marbury case) “that determining the constitutionality of laws is an inherent part of the role of the judiciary”.

“Under the CJP’s auspices, the SC constitutional bench has turned it around. A constitutional institution has been rendered impotent and dysfunctional with the active connivance of its members.

Commenting on the removal of the additional registrar, Khokhar said that a mid-ranking official has been made a scapegoat for the actions of his superiors in the judiciary.