Govt challenges SC judgment on judge’s retirement

ISLAMABAD: The caretaker federal government on Tuesday requested the Supreme Court to set aside its judgment delivered in Afiya Shehrbano Zia’s case, holding that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution that determines misconduct of judges of the superior courts.

The caretaker government through the Ministry of Law and Justice secretary filed an intra-court appeal (ICA) in the apex court under Section 5 of the Supreme Court (Practice and Procedure) Act 2023, read with Article 184(3) of the Constitution against the judgement dated June 27, 2023, delivered in the Afiya Shehrbano case.

The government prayed the court to set aside the judgment after allowing the ICA. It was also prayed to hold that a judge against whom proceedings are initiated under Article 209 of the Constitution ought to be proceeded against and his resignation would not result in abatement of such proceedings.

It is pertinent to mention here that the need for challenging the judgment of Afiya Shehrbano was propped up last week after the resignation tendered by Mazahar Ali Akbar Naqvi, judge of the Supreme Court, when the Supreme Judicial Council (SJC) was holding proceedings against the judge on misconduct complaints filed by various lawyers as well as the Pakistan Bar Council.

Attorney General Mansoor Usman Awan, however, had informed the court that the federal caretaker government will file the ICA against the apex court judgment delivered in Afiya Shehrbano case.

In the ICA, the government questioned as to whether the impugned judgment failed to make a distinction between the consequences upon resignation under Article 206, retirement under Article 179 and removal under Article 209 of the Constitution.

“Whether the said judgment has rendered the functionality of the SJC redundant by making Article 209 inapplicable to a judge who has retired or resigned, whilst inquiry proceedings are pending against him and or a show cause notice has been issued to him,” the government questioned.

It further questioned as to whether the findings in the judgment undermine the principle of transparency, accountability, equality guaranteed under articles 4, 10A and 25 of the Constitution. The caretaker government contended that those who retire and resign are entitled to pension along with those who are removed due to ill health for physical or mental incapacity.

“Clearly, a judge removed under Article 209(6) is not extended the entitlement of pensionary benefit,” it contended, adding that by simply resigning from office during the pendency of the proceedings before the SJC without any findings rendered by it, a former judge can make himself eligible to appointments post retirement.

“This runs contrary to the principles of transparency, fairness, diminishes faith of public in judiciary and thus, undermines the independence of judiciary, which is contrary to articles 9, 25 and 175 of the Constitution.

“The impugned judgment has failed to distinguish between the varying consequences as attracted against a judge who resigns, retires or is removed thereby affording and extending a way out to a judge who may face losing pension,” it said.