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ISLAMABAD: The Supreme Court issued conditional notices to the respondents in the federal government’s intra-court appeal (ICA) against the Supreme Court’s judgment barring the Supreme Judicial Council (SJC) from taking action against judges who have retired or resigned.

A five-judge bench, headed by Justice Aminuddin, and comprising Justice Jamal Khan Mandokhail, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan, on Wednesday, heard the ICA regarding setting aside of the SJC order dated 08.3.2019 in reference against ex-CJP Mian Saqib Nisar.

The court said that the notices to the respondents would be subject to the maintainability of the appeal. Justice Jamal said the Constitution is clear that the SJC can proceed only against the incumbent judges. If a complaint against a judge is found correct then the proceeding against him could initiated for his removal, he added. He inquired how a judge who has retired or resigned could be removed.

The attorney general for Pakistan contended that the judgment had come without issuing notice to the AGP office under Rule 27A of CPC or the respondents in the petition.

Justice Musarrat Hilali questioned how the federal government is affected by the SC’s judgment. Justice Amin remarked whether there is an issue of judges’ pension. The attorney general replied pension is a minuscule matter.

Justice Musarrat then questioned if there were no judgment then what would have been the stance of the federal government. Justice Saadat inquired how the Supreme Court in review jurisdiction can amend the Rules of the SJC.

The attorney general responded that the SJC is a constitutional body; therefore, the Supreme Court cannot change its code of conduct. Justice Saadat then asked the attorney general that one of the prayers in the appeal is to amend the Council’s rules.

The federation has prayed to the Court to lay down rules on whether the judicial council can continue the action against judges even after they have tendered their resignations. The government demanded the Supreme Court to nullify its ruling in the Afiya Sheherbano case. The SJC secretary and the registrar Supreme Court have been cited as respondents in the appeal.

Attorney General for Pakistan Mansoor Usman Awan on January 12 had informed the SJC, which was hearing the complaints against Justice Sayyed Mazahar Ali Akbar Naqvi (retired), that a two-judge bench, comprising Justice Ijazul Ahsan and Justice Munib Akhtar, in June 2023 had passed the judgment in Afiya Sheherbano case. He submitted that though the facts have not been mentioned in the judgment but the complaint in SJC was filed against ex-CJP Saqib Nisar.

He informed that the complaint was not attended till his (ex-CJP Saqib) retirement and the complainant wanted to know about the fate of his petition, which was filed in 2020, but decided in June 2023. At that relevant time, Justice Saqib Nisar had retired.

The AGP also informed that the SC Division Bench overlooked that the Supreme Court (Practice and Procedure) Act, 2023 which was enacted on 21st April, 2023.

He contended that the Supreme Court’s larger bench has given judgment in favour of the SC Practice and Procedure Act. He submitted that as per the Act, a constitutional petition filed before the Supreme Court must be placed before a Committee first, which decide about the constitution of benches.

He stated that the petition must have been heard by a five-judge bench, because the interpretation of constitutional provision was required, adding the petition was dismissed in limine.

Copyright Business Recorder, 2024

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