ISLAMABAD: The Supreme Court on Wednesday agreed to hear federal government’s intra-court appeal (ICA) challenging the court’s 2023 decision in the Afiya Shehrbano Zia case, which held that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution that determines misconduct of superior court judges.

However, the court attached a caveat to satisfy it on the filing of the appeal after the stipulated period of 30 days.

Headed by Justice Aminud Din Khan, a five-judge SC bench that had taken up the government’s appeal, issued notices to the respondents mentioned in the appeal, namely the Supreme Judicial Council (SJC), Supreme Court registrar, Afrasiab Khattak, M. Ziauddin, Farhatullah Babar, Nighat Said Khan, Farida Shaheed, Rubina Saighol and Bushra Gauhar.

Other members of the bench include Justice Jamal Khan Mandokhel, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan.

Govt challenges court’s decision to exempt retired or resigned judges from Article 209’s misconduct provisions; SC questions delay in filing of appeal

Before postponing further hearing for two weeks, Justice Aminud Khan inquired why the appeal was filed after a delay of 196 days.

During the hearing, Justice Mandokhel also questioned why the federal government be allowed to become a party or petitioner in a case in which nothing has been said about the federal government.

On Jan 23, the federal government has moved the ICA, on the grounds that the SJC has become virtually redundant by making Article 209 of the Constitution inapplicable to a judge facing allegations of misconduct but either retires or resigns.

Authored by Justice Munib Akhtar, a two-judge bench headed by now-retired Justice Ijazul Ahsan had held in the 2023 Afiya Shehrbano Zia judgement that judges who retire or resign do not fall within the ambit of Article 209, which determines misconduct of superior court judges. The judgement had come without issuing notice to the AGP office under Rule 27A of the Civil Procedure Code or the respondents in the petition.

The appeal contended that the findings in the judgement have undermined the principles of transparency, accountability, and equality guaranteed under Article 4, 10A and 25 of the Constitution.

The appeal requested the Supreme Court to hold that judges against whom proceedings were initiated under Article 209 of the Constitution should be proceeded against, and their resignation would not result in abatement of such proceedings.

Earlier on Jan 12, AGP Mansoor Usman Awan had made the government’s intention known to file an ICA before a five-member SJC that held its meeting in an open court to consider should it continue proceedings of misconduct against Justice Sayyed Mazahar Ali Akbar Naqvi, who had resigned on Jan 10.

The ICA argues that by not issuing mandatory notice under 27A to the AGP and advocates general of the provinces, the judgement had become null and void in the eyes of the law.

Though conceding that it was not a party to earlier hearing, the government argued that the same does not deprive the appellant from filing an ICA. Besides this petition is bolstered by settled case law consistently upheld by the Supreme Court that a person who was not a party to a suit may prefer an appeal if he was affected by the judgement, decree, or order of the trial court, provided he obtains leave from the court of appeal.

Thus, the federal government is an affected party of the judgement since it was responsible for all pension benefits entitled to a retired judge of this court. Therefore, the federal government was directly affected by the opinion rendered in the judgement in question.

Published in Dawn, February 1st, 2024