Questionable Tinkering With Retirement Age of Senior Judiciary

One Step Forward, Two Steps Back: Questionable Tinkering With Retirement Age of Senior Judiciary

Let us first get one thing straight, and this humble author would be the first to concede the same: the retiring ages of the judges of 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and 195 (for judges of the High Court) of the Constitution are identical to what they were when the Constitution was originally enacted.

A judge of the Supreme Court retires upon reaching the age of sixty five years – as originally enacted in the Constitution.

A judge of the High Court retires upon reaching the age of sixty two years – as originally enacted in the Constitution.

But it was not always the case.

For a brief moment in time (albeit an unfortunate time), courtesy of Article 2(4) of the Legal Framework (Amendment) Order, 2002 (Chief Executive’s Order No. 29 of 2002), the retiring age of judges of the superior court was raised to sixty eight years and the retiring age of judges of the High Court was raised to sixty five years, respectively.

What was arguably perhaps much more unfortunate about the entire affair (notwithstanding the political reality in which such an amendment was brought about) was the concomitant increase in the minimum age requirement for someone 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 enquiry may have to wait another day, it may be 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 for someone 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on one hand Section 2 (subject to Article 264 and the provisions of the Constitution (Eighteenth Amendment) Act 2010) repealed the Constitution (Seventeenth Amendment) Act 2003, and the Legal Framework (Amendment) Order 2002 (Chief Executive’s Order No. 29 of 2002), on the other hand, 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 aside, 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 for someone 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 ages for judges are now “sixty-two” (High Court) and “sixty-five” (Supreme Court) 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) and now seventeen (17) years (post Seventeenth and Eighteenth Amendment).

So why is the tinkering so questionable?

The Parliament ultimately has wide amending powers granted under the Constitution, subject only to the prohibition that “salient features” of the Constitution not be substantially altered or repealed. Moreover, if one were to restrict to the amendments to retiring ages, the end result has indeed been a restoration to original form.

Naturally, one cannot view the result singularly and 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 as it is. The present author, too, humbly subscribes to that view.

That noted, if one were to restrict oneself to the playing field permitted under the law as it stands, one would suggest that the restoration of the retiring ages from 68 years (Supreme Court) and 65 years (High Court) to 65 and 62 respectively, was in 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 judiciary”.

In the context of the assertion that Article 209 is linked to the security of tenure, please see:

  • 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…”

In the context of the connection between security of tenure and the independence of the judiciary, please also see:

  • Paragraph 44 of the majority note authored by Justice Jawwad S. Khawaja, 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 security of tenure were sine qua non for the independence of judiciary, a salient feature of the Constitution, can it also not be said that both security and independence of 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 predetermined tenure?

Let us take an example.

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

Enter the Seventeenth Amendment.

With the reduction in retirement ages to 62 and 65 respectively, Justice Nick’s tenure is automatically reduced to 6 months, at the completion of which he would have reached the age of superannuation. This – while clearly 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 retirement age 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)).

Any violation of Article 209(7) of the Constitution, which is essential to the independence of judiciary which in turn is a salient feature of the Constitution, would arguably amount to a violation of the latter, regardless of which branch of the state such move is initiated from.

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

International comparative discourse on the subject, even 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. (Emphasis supplied)


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.”

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 the following:

“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 does 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, and was considered by 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” according to (33/2012. (VII. 17.) AB decision of 16 July 2012 of 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 violation of Article 10-A under our Constitution (ironically inserted therein by the Eighteenth Amendment) may arguably be agitated as well.

Of course, any leveling 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 other conditions required for a law to pass the test of Article 25 must not be overlooked either.

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 enquiry. 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 this 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 number to which the retiring age of judges of the High Court was increased under the Legal Framework Order.

Indeed, the author would candidly venture to suggest that there exists no reasonable justification for having different retiring ages 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 leveling down of the retiring ages so achieved from the Seventeenth Amendment onward, 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 above), if it may be.

Therefore, in a sense, the Constitution only envisions the leveling up of retiring ages of superior judges, as 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, which is a natural consequence of improvements in the quality of and access to health facilities, retiring ages would have been leveled up with time.

So where does the fault lie?

Of course, one would suggest that the first slice from tenures was cut off by the Legal Framework (Amendment) Order, 2002. The increase in retiring ages was a step forward, while an increase in the minimum age requirement for a person to be considered qualified for appointment as a judge of the High Court, a step back. What is perhaps unfortunate is that the next slice was cut off by Parliament itself, courtesy of the Seventeenth Amendment. It was a step backwards that the Eighteenth Amendment, instead of retracing, regrettably elected to freeze things with the introduction of Article 267B of the Constitution.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Muhammad Usman Ghani

The writer is an Advocate of the High Court and Partner at Ali and Ghani Law Chambers. He was called to the Bar of England & Wales in 2012 as a Member of Lincoln’s Inn. He is also an ADR Group Accredited Civil and Commercial Mediator.



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