One step forward, two steps back: the questionable tinkering with the Retiring Ages of

the Judges of the Superior Courts

by Muhammad Usman Ghani

So let us get one thing straight; and this humble author would be the first to concede the
same.

The Retiring Ages of the Judges of the Superior Courts, as they presently stand in Articles
179 (for Judges of the Supreme Court) and 195 (for Judges of the High Court) of the
Constitution are identical to what they were when the Constitution was originally enacted.

A Judge of the Supreme Court retires upon reaching the age of sixty five years. As he did
under the Constitution as originally enacted.

A Judge of the High Court retires upon reaching the age of sixty two years. As he did under
the Constitution as originally enacted.

But that was not always the case.

For a brief moment in time (albeit an unfortunate time), courtesy Article 2(4) of the Legal
Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002), the
Retiring Ages of the Judges of the Superior Court were raised to sixty eight years (for Judges
of the Supreme Court) and sixty five years (for Judges of the High Court), respectively.

What was arguably perhaps much more unfortunate about the entire affair (notwithstanding
the political reality in which such amendment was brought about) was the concomitant
increase in the Minimum Age Requirement to be considered qualified for Appointment as a
Judge of a High Court, from forty years to forty five. Indeed, so deep and profound is the
impact of such increment that the same would merit an independent examination.

Whilst that particular inquiry may have to wait for another day, it may suffice, for the
purposes of the present endeavour, to note that by virtue of Articles 6 and 7 of the
Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003), Articles 179 and 195 (along
with the respective Retiring Ages) were restored to their original form. These restorative
provisions were to take effect from December 31, 2003. Conspicuously, the decision to
increase the Minimum Age Requirement to be considered qualified for Appointment as a
Judge of a High Court was not reversed at this juncture.

Enter the Eighteenth Amendment.

While on one hand Section 2 repealed (subject to Article 264 and the provisions of the
Constitution (Eighteenth Amendment) Act, 2010) the Constitution (Seventeenth Amendment)
Act, 2003, and the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order
No. 29 of 2002), on the other, Section 93 inserted Article 267B to the Constitution, which
maintained the Retiring Ages at sixty two and sixty five years respectively:

“267B. Removal of doubt.- For removal of doubt it is hereby declared that Article
152A omitted and Articles 179 and 195 substituted by the Constitution (Seventeenth
Amendment) Act, 2003 (Act No. III of 2003), notwithstanding its repeal, shall be
deemed to always to have been so omitted and substituted.”

Convoluted legislative histories, though fun to trace, often merit a simpler explanation for
readers of leisure.

Needless details apart, the cumulative effect of the various amendments introduced by the
Legal Framework Order, the Seventeenth and Eighteenth Amendment (i.e. the status quo) is
that:

1. the Minimum Age Requirement to be considered qualified for Appointment as a

Judge of a High Court is now "forty-five" years, as opposed to the original “forty”;
2. the Retiring Age for Judges of the Superior Courts are now “sixty-two” (High Court)
and “sixty-five” respectively, as originally set;
3. the Maximum Potential Length of Tenure of a Judge of a High Court has been
reduced from twenty two (22) years (original Constitution), to twenty (20) years
(Legal Framework Order) to now seventeen (17) years (post Seventeenth and
Eighteenth Amendment).

So why is the tinkering so questionable?

After all, Parliament has wide amending powers granted under the Constitution, subject only
to the prohibition that the “Salient Features” of the Constitution are not substantially altered
or repealed. Moreover, if one were to restrict to the amendments to the Retiring Ages, the end
result has been, indeed, a restoration to original form.

Naturally, one cannot view the result solely, so divorced from its complete context. As noted,
there has been a reduction in the Maximum Potential Length of Tenure of a Judge of a High
Court from 22 years (original Constitution), to 17 (status quo). Of course, some quarters
might find such reduction objectionable at is. The present author, too, humbly subscribes to
that view.

That noted, if one were to restrict one’s self to the playing field permitted under the law, as it
stands, one would suggest that the restoration of the Retiring Ages, from 68 (Supreme Court)
and 65 (High Court) years to 65 and 62, respectively, was in patent (and blatant)
contravention of Article 209(7) of the Constitution, which reads:

“A Judge of the Supreme Court or of a High Court shall not be removed from
office except as provided by this Article.”

Article 209(7), as it presently stands, remains unaltered from the day it was originally enacted
in 1973, and further inextricably linked to the “security of tenure”, which itself is linked to a
Salient Feature of the Constitution, namely the “independence of the judiciary”.

Please see in the context of the assertion that Article 209 is linked to the security of tenure:

• Paragraph 93 of the majority note authored by Sajjad Ali Shah C.J. in Al-
Jehad Trust v Federation of Pakistan (PLD 1996 SC 324), wherein it has been noted
that:

“…it is clear from the above provisions that the security of tenure is provided
under Article 209…”
 • Paragraph 60 of Ajmal Mian J.’s note in Al-Jehad Trust v Federation of
Pakistan (PLD 1996 SC 324), wherein it has been observed that:

“60. …Whereas, clause (7) thereof guarantees the tenure of a Judge of the
Supreme Court and of a High Court by providing that a Judge of the Supreme
Court or a High Court shall not be removed from office except by this
Article…”

Please also see, in the context of the connection between security of tenure and the
independence of the judiciary:

• Paragraph 44 of the majority note authored by Justice Jawwad S. Khwaja, as

he then was, in Munir Hussain Bhatti v Federation of Pakistan (PLD 2011 SC 407):

“44. Similarly, the Courts have repeatedly declared that this “independence of
the judiciary” which the Constitution assures us, depends directly on the
process of the appointment, removal and security of tenure of judges. In the
Al-Jehad Trust case, this Court reiterated that “... the independence of
Judiciary is inextricably linked and connected with the Constitutional process
of appointment of Judges of the superior Judiciary” (ibid 429). In the Mehram
Ali case (PLD 1998 SC 1445 at page 1477), this Court further held that the
terms, conditions and security of tenure of Judges is also central to the
independence of the judiciary. And, recently in the Chief Justice’s case, it
was reaffirmed that: “security of office of judges and of its tenure was a
sine qua non for the independence of judiciary...” (PLD 2010 SC 61).
Indeed it is an undisputed tenet of our Constitutional scheme that in matters
of appointment, security of tenure and removal of Judges the
independence of the Judiciary should remain fully secured. We are in
respectful agreement with these tenets as expounded in the cited precedents.”

(Emphasis Supplied)

If security of office of judges and of its tenure was a sine qua non for the independence of
judiciary, a salient feature of the Constitution, then can it also not be said that both such
security and the independence of the judiciary are violated by a reduction in the Retiring Age,
an implication of which may be the removal of a Judge of the High Court, in violation of
their pre-determined tenure?
Let us take an example.

Let us, for a moment, travel back to October 2003, when the ages (both appointment and
retirement) were as set by the Legal Framework Order; namely appointment at 45, retirement
at 65 for a High Court Judge and retirement at 68 for a Supreme Court Judge.

For the purpose of demonstration of our assertion, it may be beneficial to take the examples
of Mr. Nick, a prospective appointee to the post of a Judge of the High Court and Justice Joe,
a serving High Court Judge who was a prospective appointee to the post of a Judge of the
Supreme Court.

Mr. Nick was appointed as an Additional Judge of the High Court on 03.10.2003, at the age
of 61 years and 6 months, for a term of one year, his term expiring at the age of 62 years and
6 months.

Justice Joe was elevated as a Judge of the Supreme Court on 03.10.2003, at the same age of
61 years and 6 months, his term lasting till the age of retirement set at 68, namely, 6 years
and 6 months.

Of course, if Justice Nick were to be eventually confirmed at the expiration of the one year
term as a permanent Judge of the High Court, his term would have extended till 65, as per the
Constitutional mandate of the time.

Now enter the Seventeenth Amendment.

With the reduction in the Retiring Ages to 62 and 65 respectively, Justice Nick’s tenure is
reduced, automatically, to 6 months, at the completion of which he would have reached the
age of superannuation. This, while markedly in violation of his own appointment notification
and terms, would have been the correct interpretation of the Constitution, which superseded
all instruments made thereunder.
Likewise, Justice Joe’s tenure as a Supreme Court Judge would stand automatically reduced
to 3 years and 6 months.

Since a reduction in the retiring ages, demonstrably, has the potential to remove, by
implication, a Judge of a Superior Court from office, in violation of the previously granted
term of office, it is suggested that the same is in direct contravention of the above-reproduced
Article 209(7).

Reference in this regard may be made to Paragraph 60 of the note authored by Ajmal Mian J.
in Al-Jehad Trust v Federation of Pakistan (PLD 1996 SC 324), wherein even “implied
removal” was sufficient to engage the Article 209(7) protection. As noted therein “this also
adversely affects the terms of a Judge”. (quoted with approval in Paragraph 114 of the Chief
Justice’s case (PLD 2010 SC 61)).

Article 209(7) of the Constitution being essential to the independence of judiciary, a salient
feature of the Constitution, any violation of the former would arguably amount to a violation
of the latter; no matter which branch of the State such attack is conducted from.

Indeed, it may be intriguing to note that the commandment contained in Article 209(7) is not
directed to any particular quarters. Whence viewed in juxtaposition with Article 5, one could
reasonably conclude that the direction contained therein was addressed to all: including the
Parliament.

International comparative discourse on the subject, if sparse, has remained notably consistent.
To quote the IBA Minimum Standards of Judicial Independence, adopted in 1982:

“B JUDGES AND THE LEGISLATURE

20 a) Legislation introducing changes in the terms and conditions of

judicial services shall not be applied to judges holding office at the time of
passing the legislation unless the changes improve the terms of service.

b) In case of legislation reorganising courts, judges serving in these courts

shall not be affected, except for their transfer to another court of the same
status.”
 (Emphasis Supplied)

Likewise, the Basic Principles on the Independence of the Judiciary, adopted by the Seventh
United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in
Milan in 1985, endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985
and 40/146 of 13 December 1985, clearly affirm:

“12. Judges, whether appointed or elected, shall have guaranteed tenure until a
mandatory retirement age or the expiry of their term of office, where such
exists.

...

18. Judges shall be subject to suspension or removal only for reasons of

incapacity or behaviour that renders them unfit to discharge their duties.

...”

As do the Beijing Statement of Principles of the Independence of the Judiciary in the

LAWASIA Region Beijing, 19 August 1995:

“21. A judge’s tenure must not be altered to the disadvantage of the judge
during his or her term of office.

29. The abolition of the court of which a judge is a member must not be
accepted as a reason or an occasion for the removal of a judge. Where a court
is abolished or restructured, all existing members of the court must be
reappointed to its replacement or appointed to another judicial office of
equivalent status and tenure. Members of the court for whom no alternative
position can be found must be fully compensated.”

(Emphasis Supplied)

Reference may also be made to the Universal Charter of the Judge, the text of which was
approved by delegates attending the meeting of the Central Council of the “International
Association of Judges”, in Taipei (Taiwan) on November 17, 1999, considered by the
member associations of the International Association of Judges as general minimal norms:
 “Art. 8 Security of office

A judge cannot be transferred, suspended or removed from office unless it is

provided for by law and then only by decision in the proper disciplinary
procedure.

A judge must be appointed for life or for such other period and conditions, that
the judicial independence is not endangered.

Any change to the judicial obligatory retirement age must not have
retroactive effect.”

(Emphasis Supplied)

And to quote the UN Human Rights Committee (HRC), General comment no. 32, Article 14,
Right to equality before courts and tribunals and to fair trial, 23 August 2007,
CCPR/C/GC/32, available at: http://www.refworld.org/docid/478b2b2f2.html [accessed 18
April 2018]:

“19. The requirement of competence, independence and impartiality of a

tribunal in the sense of article 14, paragraph 1, is an absolute right that is not
subject to any exception. The requirement of independence refers, in
particular, to… guarantees relating to their security of tenure until a
mandatory retirement age or the expiry of their term of office, where
such exist, …. States should take specific measures guaranteeing the
independence of the judiciary, protecting judges from any form of political
influence in their decision-making through the constitution or adoption of
laws establishing clear procedures and objective criteria for the
appointment, remuneration, tenure, promotion, suspension and dismissal of
the members of the judiciary and disciplinary sanctions taken against them. ...
In order to safeguard their independence, the status of judges, including
their term of office, their independence, security, adequate remuneration,
conditions of service, pensions and the age of retirement shall be adequately
secured by law.”

(Emphasis Supplied)
Of course, the “irremovability of judges is, at the same time, a guarantee of the right to an
independent and impartial court” (33/2012. (VII. 17.) AB decision of 16 July 2012, the
Hungarian Constitutional Court, at Paragraph 84).

As noted by the European Court of Human Rights in Baka v Hungary, (App no 20261/12
(ECtHR, 27 May 2014), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-144139 [accessed 18 April
2018]), at Paragraph 45:

“…the Constitutional Court held that the introduction of a lowered retirement

age for judges must be made gradually, with an appropriate transition period
and without violating the principle of the irremovability of judges. The greater
the difference between the new retirement age and seventy years of age, the
longer the transitional period required for introducing a lower retirement age.
Otherwise, the irremovability of judges, which constitutes an essential element
of independence of the judiciary, is violated.”

If that were so, then, surely, a case of a violation of Article 10-A under our Constitution
(ironically inserted therein by the Eighteenth Amendment) may arguably be agitated as well.

Of course, any levelling down of the Retiring Age, without forthcoming reason or
justification, may also tantamount to an “ism” rarely debated in our courts: “ageism”.

While Article 25 of the Constitution, our equality clause, as interpreted by the Supreme
Court, indeed permits classification on the basis of age, it is humbly suggested that the same
must not lose sight of the other conditions required for a law to pass the test of Article 25.

Such law must both be reasonable and have a rational nexus with a legitimate aim.

To conjecture as to what aim such reduction in the retirement ages sought is not the purpose
of the present inquiry. For said purpose, it may suffice to note that if such aim bore any nexus
to stereotypes associated with age, they would be an affront to human dignity, as declared
inviolable in Article 14. Any exclusionary qualification would be if founded solely on the
basis an event beyond human control.

It may, however, be humbly urged that there exists no reasonable justification for having
reduced such Retiring Ages, when once increased; more so as far as Judges of the High
Courts were concerned.

The veracity of such assertion may be highlighted after considering the fact that the
Constitution itself, in Article 179, (both as originally enacted and at present) provides the
Retiring Age of a Supreme Court Judge as 65; the age to which the Retiring Age of Judges of
the High Court was increased to under the Legal Framework Order.

Indeed, the present author would candidly venture to suggest that there exists no reasonable
justification for having different Retiring Age for Judges of the High Court and Supreme
Court.

The constitutional recognition of the age of 65 (or 68 if you go by the Legal Framework
Order) as one at which an individual may be expected to be capable of performing judicial
functions provides ample justification for declaring the levelling down of the Retiring Ages
so achieved from the Seventeenth Amendment onwards, as a substantial alteration of a salient
feature of the Constitution.

Be it in an attempt to return to Articles 179 and 195 as originally enacted (though

disproportionally as highlighted hereinabove), if it may be.

Therefore, in a sense, the Constitution only envisions levelling up of the Retiring Ages of
Judges of the Superior Courts. For to level it down, would potentially violate Article 209(7)
of the Constitution, a salient feature thereof.

Even conventional logic dictates that with the increase in life expectancy that is a natural
consequence of improvements in quality of and access to health facilities that the Retiring
Ages would have been levelled up with time.

So where does the fault lie?

Of course, one would suggest that the first slice from the tenures was cut by the Legal
Framework (Amendment) Order, 2002. The increase in the Retiring Ages was a step forward;
the increase in Minimum Age Requirement to be considered qualified for Appointment as a
Judge of a High Court, a step back.

What is perhaps unfortunate is that the next slice was cut by Parliament itself, courtesy the
Seventeenth Amendment. A step back that the Eighteenth Amendment, instead of retracing,
regrettably elected to freeze with the introduction of Article 267B of the Constitution.