During a hearing on a tax-related case in the Supreme Court on Monday, the judges engaged in an intriguing discussion about the necessity of a constitutional bench to hear certain cases. Senior judge Justice Mansoor Ali Shah questioned whether the current "regular" bench was unconstitutional without a dedicated constitutional bench.
Justice Shah raised the critical point: “Are we unconstitutional until the constitutional bench is established?” His remark highlighted the uncertainty surrounding the bench’s authority to decide constitutional matters in the interim. He pointed out that the regular bench, which was hearing the tax-related case, could make decisions, but no one could challenge those decisions on the grounds of the bench's legitimacy. He further emphasized that even if the regular bench ruled on the case, and a review plea came before them, they would assert jurisdiction, suggesting that such matters could be handled without any constitutional dispute.
Justice Ayesha Malik, who was also part of the bench, responded by stating that the case at hand would eventually be assigned to a constitutional bench once one is formed. However, Justice Shah raised concerns about the delay in the formation of such a bench and whether constitutional matters could continue to be addressed in the meantime.
Justice Malik explained that under Article 2A, the Practice and Procedure Committee is responsible for determining whether a case should be assigned to a constitutional bench or a regular one. However, she acknowledged that this process would take time, and the matter would remain unresolved until the committee made a decision.
Justice Shah concluded that more time was needed to determine which bench would hold jurisdiction over constitutional cases. The hearing was adjourned indefinitely to allow for further clarity on this issue.
This debate brings into focus the procedural complexities in the judiciary, particularly when it comes to the composition of benches that handle constitutional matters.
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