ISLAMABAD: Justice Muhammad Ali Mazhar, a member of the Supreme Court`s constitutional bench (CB), ruled on Saturday that only the CB has the authority to exercise the Supreme Court`s original jurisdiction under Article 184, the appellate jurisdiction under Article 185(3), or the advisory jurisdiction under Article 186.

`I wish to state unequivocally, without contradiction in words or deeds, that in the current scenario, no bench of this court, except the Constitutional Bench, may exercise: (i) the Supreme Court`s original jurisdiction under Article 184; (ii) its appellate jurisdiction under clause (3) of Article 185, where a High Court judgement or order issued under Article 199 involves the constitu-tionality of a law or a substantial question of constitutional interpretation; and (iii) its advisory jurisdiction under Article 186,` he observed.

The 20-page concurring note came in support of the CB`s Jan 28 order in which the Jan 13 and 16 orders by a smaller regular bench were recalled by declaring the same as non-est. The Jan 28 order also settled the thorny issue raised by Justice Mansoor-led smaller bench whether the constitutional committee set up under Article 191A can undo the effect of a judicial order by withdrawing a jurisdictional case already taken cognisance ofby a regular bench.

`In all fairness, in my view, there is no room for difference of opinion: any exercise of this jurisdiction outside CB at present would be coram non judice,` Justice Mazhar explained.

He mentioned Article 191A (5) dictates that all petitions, appeals, or review applications against judgements rendered or orders passed, pending or filed in the SC prior to the com-mencement of 26th Amendment stand transferred and will only be heard and decided by the CB.

`With all humility at my command and with due reverence, if any regular bench, despite the clear and unambiguous constitutional provisions, over-ambitiously assumes jurisdiction or undertakes to decide the alleged controversy based solely on respondent`s counsel`s argument in a tax matter without self-realisation, it would not only constitute a wrongful exercise of jurisdiction but also amount to a violation of Article 191A of the Constitution,` Justice Mazhar elaborated.

According to the note, judges have taken an oathto preserve,protect and defend the Constitution. Moreover, the Code of Conduct for Judges of the Supreme Court and High Courts, framed by the Supreme Judicial Council under Article 128 (4) of the Constitution of 1962 and subsequently amended under Article 209 (8) of the Constitution 1973, implies complete submission to the Constitution and,under it, to the law, it added.

Until the final adjudication of the pending petitions, we cannot shut our eyes to andignore a ground reality that not only is the CB being assembled regularly under the current framework of the Constitution, but cases are also being fixed and heard regularly, the judge asserted.

The present proceedings are confined solely to the question of the alleged vires of Subsection 2 of Section 221-A of the Customs Act, 1969, inserted through the Finance Act, 2018.

Justice Mazhar said he was a staunch believer of the concept that the role of a constitutional judge was different from that of a monarch who was free to exert power and pass orders of his choice over his subjects. On the other hand, he said, a constitutional judge must always remain mindful that they, too, were bound by the very constitution they were entrusted to interpret and enforce and therefore were the first and foremost subject to the constitution and the law.