FEDERATION OF PAKISTAN through Revenue Division Versus DEWAN MOTORS (PVT) LTD. Mirza Nasar Ahmad , Salah-ud-Din
This matter comes before the Supreme Court of Pakistan upon an objection raised by the petitioners regarding the jurisdiction of the regular bench to hear cases involving a challenge to the constitutionality of subsection (2) of Section 221-A of the Customs Act, 1969, in light of Article 191A introduced by the 26th Constitutional Amendment. In response, the respondents contended that Article 191A itself is constitutionally invalid as it violates salient features of the Constitution such as the independence of the judiciary and separation of powers, and thus cannot oust the jurisdiction of the regular benches. The core legal question concerns whether the present regular bench has the jurisdiction to hear the cases and whether it can determine the constitutional validity of Article 191A of the Constitution. The Court held that it is necessary to first decide upon the jurisdictional objection and the validity of Article 191A before proceeding further with the merits, and accordingly adjourned the matter to grant time to the parties to prepare their arguments.
- Whether a regular bench of the Supreme Court can hear cases involving a challenge to the constitutionality of subsection (2) of Section 221-A of the Customs Act, 1969 in view of Article 191A of the Constitution?
- Does Article 191A of the Constitution infringe upon the salient features of the Constitution including the independence of the judiciary and the separation of powers?
- Can a regular bench of the Supreme Court decide upon the constitutional validity of Article 191A of the Constitution when an objection to its jurisdiction is raised based on the said Article?
- Section 221-A(2), Customs Act 1969
- Article 191A, Constitution of Pakistan 1973
ORDER
At the very outset, the learned counsel for the petitioners submitted that the present regular bench of the Court cannot hear these cases, as they involve a challenge to the constitutionality of a law, namely, subsection (2) of Section 221-A of the Customs Act, 1969. When asked why this bench cannot hear these cases, the learned counsel referred to the provisions of Article 191A, which was added to the Constitution of the Islamic Republic of Pakistan through the 26th Constitutional Amendment. In response to the petitioners' objection regarding the lack of jurisdiction of the present bench of the Court, the learned counsel for the respondents contended that Article 191A, the basis of the objection regarding jurisdiction, is constitutionally invalid as it infringes upon the salient features of the Constitution, including the independence of the judiciary and the 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.
2. When asked how the present bench of the Court can decide upon the constitutional validity of the newly added Article 191A, the learned counsel for the respondents took the position that since the objection raised and the basis thereof pertain 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.
3. 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. Therefore, the learned counsel for the parties are granted time to prepare their arguments and assist the Court on the said points. The hearing for arguments on those points is adjourned to 16.01.2025.
MH/F-2/SC Order accordingly.