ISLAMABAD: The federal government on Tuesday moved an intra-court appeal (ICA) before the Supreme Court challenging the 2023 Aafia Shaharbano Zia judgement on the grounds that the Supreme Judicial Council (SJC) has been virtually rendered 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 Ijaz-ul-Ahsan had held in the 2023 Aafia Shaharbano Zia judgement that a judge who retires or resigns does not fall within the ambit of Article 209 that determines about misconduct of superior court judges.

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The judgment had come without issuing notice to AGP office under Rule 27A of CPC or the respondents in the petition.

Moved by Additional Attorney General (AAG) Malik Javaid Iqbal Wains on behalf of the federal government, the appeal contended that findings in the judgment have undermined the principles of transparency, accountability and equality guaranteed under Article 4, 10A and 25 of the Constitution.

The appeal has 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 resignations would not result in abatement of such proceedings.

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

The ICA argued that by not issuing mandatory notice under Rule 27A to AGP and advocates-general of the provinces, the judgment had become nullity in the eyes of the law.

Though conceding it was not a party to the earlier hearing, the government argued that the same does not deprive the appellant the right to file ICA. The ICA said the federal government is an affected party of the judgment since it was responsible for all pension benefits, which a retired judge of this court was entitled to. Therefore, the federal government was directly affected by the opinion rendered in the judgment in question.

Published in Dawn, January 24th, 2024