Justice Mansoor questions legitimacy of regular bench handling Constitutional cases

-- If no constitutional bench is seated, does this mean we are unconstitutional, argues Justice Shah

ISLAMABAD: Amid ongoing uncertainty about the future of various cases in light of the issue surrounding constitutional benches, the senior-most judge of the Supreme Court, Justice Mansoor Ali Shah, has questioned the constitutionality of the existing benches until designated constitutional ones are formed.

"Until a constitutional bench is established, are we unconstitutional?" Justice Mansoor asked during the hearing of a tax-related case in the apex court on Monday.

The case was being heard by a three-member bench, which also included Justices Ayesha Malik and Aqeel Abbasi.

His comments come after the ruling coalition pushed through the 26th Amendment in both the National Assembly and the Senate last month. This amendment includes provisions for the establishment of designated constitutional benches at the Supreme Court and high courts.

The controversial constitutional changes have sparked confusion regarding the future of pending cases and the jurisdiction of the benches hearing them.

During the hearing, Justice Ayesha pointed out that the bench led by Justice Mansoor was an "ordinary" one, and the case should ideally be heard by a constitutional bench.

In response, Justice Mansoor remarked, "At present, there is no constitutional bench, so what should be done with this 'unconstitutional bench'?"

He further questioned whether constitutional cases should remain on hold until the designated benches are formed, stating that even if they proceeded with the case, no one could challenge their decisions.

"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 affirm our jurisdiction," he said, adding that the debate over whether a case should be heard by a regular or constitutional bench had been raised multiple times.

When Justice Aqeel Abbasi asked whether the three-member bench could continue hearing the case, Justice Mansoor responded, "Give it some time and see what happens."

Justice Ayesha noted that the Supreme Court's Practice and Procedure Committee would address the issue, but it would take some time to resolve.

With no immediate resolution in sight, Justice Mansoor adjourned the case indefinitely.

This isn't the first time Justice Mansoor has addressed this issue. Last week, during a hearing related to over-billing by Sui Northern Gas Pipelines Limited (SNGPL), he remarked that not every case should be transferred to a constitutional bench.

It is worth noting that the Judicial Commission of Pakistan (JCP) recently formed a seven-member constitutional bench under Justice Amin-ud-Din Khan. The bench, which includes judges from all provinces, was constituted on November 5 with a 7-5 majority vote.

The members of the bench include 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). The bench will serve a term of two months.