Will retirement age hike change SC lineup?

KARACHI: Increasing the age of retirement of Supreme Court judges to 68 may not necessarily affect any currently serving Supreme Court judge though sceptics argue that there is a case to be made for not increasing the retirement age.

This issue became more relevant after news reports confirmed that the government may be introducing judiciary-centric legislation today, aiming to extend the retirement age of superior courts’ judges. In fact, Defence Minister Khawaja Asif has asserted that the government has the numbers to introduce a ‘constitutional amendment’ in the National Assembly today.

Under the constitution of Pakistan, Article 179 lays out that: “A judge of the Supreme Court shall hold office until he attains the age of sixty five years, unless he sooner resigns or is removed from office in accordance with the constitution.”

If rumours are correct, then today the government may be looking for a two-thirds majority to amend this article (179) as well as perhaps Article 195 which pertains to high court judges.

This issue has been doing the rounds for some time now alleging all kinds of rumours regarding possible ‘extensions’ in the service of the chief justice, and the matter was recently taken up also by the chief justice who clarified that he would not accept any person-specific proposal on fixing the tenure of the country’s top judge.

With this as context, there has been a lot of concern regarding the amendments the government may be thinking of introducing today. But what exactly does an increase in retirement age mean for the judges of the Supreme Court?

Nothing much, says Special Correspondent at Geo TV Abdul Qayyum Siddiqui who explains that at the end of the day, an increase in the age of retirement means pretty much an increase in the age of retirement of all the SC judges. He explains: “If the age of retirement is increased, then obviously Chief Justice Qazi Faez Isa will not retire on October 25. The tenure of Justice Mansoor Ali Shah will be delayed in this case then -- for three years. But he will become chief justice after the three years of CJ Isa’s term are over. After that there is Justice Muneeb Akhtar; he too will become chief justice -- for about a year or so -- after Justice Shah retires. After him comes Justice Yahya Afridi for two years as CJ. So the CJ lineup doesn’t get affected by this amendment.”

What would have affected the chief justice tenure lineup would have been the term of the chief justice being increased to three years. Siddiqui remembers how during Imran Khan’s tenure, “it had been suggested that the tenure of the chief justice post be increased to three years; this was when CJ Umar Ata Bandial was heading the apex court and Justice Isa was due to become the new CJ.” Had that happened, then Justice Isa would not have become CJ nor would Justice Mansoor Ali Shah or Justice Yahya Afridi made it to the SC chief justice post.

While Barrister Ali Tahir feels that the hypothetical constitutional amendment increasing the age of retirement being passed “is not highly probable”, he says it is true that it will “not affect any currently serving Supreme Court judge until Justice Shahid Waheed, who will retire in 2031 under the current provisions and in 2034 if the hypothetical amendment goes through. He is currently the last one in line to become Chief Justice of Pakistan till the next set of elevations.”That said, Barrister Tahir also feels that “the senior puisne judge and the next senior-most will have very little to gain but a lot to lose in that they will be delayed from holding the CJ office for three years.”

For him, there is a case to be made for not increasing the age since “legally it will be a test for the current chief justice, especially in light of the rule against bias: how could a chief justice justify an increase in age until it applies prospectively to judges after him? Will it not show an inclination to stay in judicial authority?”