SC seeks parties’ assistance on Article 191A validity

ISLAMABAD: The Supreme Court Tuesday sought the assistance of parties by January 16 on the constitutional validity of Article 191A, which has been added to the Constitution through the 26th Amendment.

A three-member bench of the apex court — headed by Justice Syed Mansoor Ali Shah — issued a written order in the matter challenging the vires of sub-section (2) of Section 221-A of the Customs Act, 1969 added vide Finance Act, 2018.

Justice Ayesha A Malik and Justice Irfan Saadat Khan were the other bench members.

The bench the other day heard the case filed by the Federation of Pakistan through the Revenue Division.

According to the written order, the counsel for the Federation submitted that the present regular bench of the court could not hear these cases, as they challenge the constitutionality of a law, namely, subsection (2) of Section 221-A of the Customs Act, 1969.

Asked why the instant bench could not hear these cases, the counsel referred to the provisions of Article 191A, which was added to the Constitution through the 26th Amendment.

In response to the petitioners’ objection regarding the lack of jurisdiction of the present bench of the court, the counsel for the respondents contended that Article 191A, the basis of the objection regarding jurisdiction, was constitutionally invalid, as it infringed upon the salient features of the Constitution, including the independence of judiciary and separation of powers among the three organs of the state.

“He further submitted that a constitutionally invalid amendment cannot oust the constitutionally valid conferment of jurisdiction on the regular benches of the court,” says the written order.

When the bench asked how the present bench could decide upon the constitutional validity of the newly added Article 191A, the counsel for the respondents took the position that since the objection raised and the basis thereof pertained to the jurisdiction of the present bench, it must be decided by it. In support of his stance, he referred to Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), Fazlul Quader Chowdhry v. Abdul Haque (PLD 1963 SC 486) and Marbury v. Madison (5 US 137 [1803]) and sought time to further assist the court on this point, says the written order

“Given the objection raised and the reply thereto, we find that it would be necessary to first decide upon the same before proceeding further in the matter at hand,” the written order further said. The court granted time to the parties to prepare their arguments and assist it on the said points and adjourned the hearing until January 16.