Let the heavens fall
The benefit of extended service beyond the period of superannuation to the incumbent chief justice of Pakistan might perhaps be among the most debated topics in the country these days.
In fact, a petition — deemed to be behind the debate — was filed in the Supreme Court seeking direction for adding a period of 22 months to the service of the chief justice — a period during which he could not perform his duties as a judge of the Supreme Court.
Reportedly, the petition was returned by the Supreme Court registrar’s office due to some technical objections.
Without being prejudiced towards any interpretation, under the prevailing legal and constitutional position the issue of extension in the tenure of any constitutional office-holder, including the chief justice or any other judge, after attaining the age of retirement, is not even a debatable issue, in my humble opinion.
The appointments of judges in the superior courts are constitutional appointments. The Constitution delineates the qualifications and procedure for elevation in the superior courts and under the Constitution; the age of the superannuation of a judge of the Supreme Court is 65 years and for a high court judge it is 62 years — unless he resigns sooner or is removed from his post.
The appointments made under the Constitution cannot be extended vide controversial judicial orders for the simple reason that the Supreme Court cannot enact or strike down any provision of the Constitution, although it can interpret the document.
Therefore, the interpretation is to give effect to the true intent of the constitutional provision with due caution that it must not be something that amounts to rewriting or amending the Constitution for self-serving purposes.
After the takeover of October 1999 and later, through the proclamation of emergency on Nov 3, 2007, a number of judges, who had not achieved the age of superannuation, were sacked by Pervez Musharraf for allegedly overstepping the limits of judicial authority and for taking over executive and legislative functions. The incumbent chief justice and many other judges were also amongst them.
Some of these judges have retired after attaining the age of retirement. If the extension is not offered to all those judges who were deposed during the military-led regime, it would be highly unfair to give this option to one judge only.
We can reflect on the Supreme Court’s judgement ‘Federation of Pakistan through secretary Establishment Division versus Shahid Hayat and another’. This reviewed an earlier judgement which gave the benefit of extended service beyond the period of superannuation to the respondent by a bench headed by retired Justice Abdul Hameed Dogar. The review held that any such order would likely open a Pandora’s box of litigation. This was because anyone having ever been suspended for a certain period of time would come to the court claiming the extension of service for the interrupted period.
Hence enhancing the judges’ tenure of service might be considered as a bribe by the executive. The Supreme Court in the Zafar Ali Shah case used its powers beyond constitutional limits and provided unprecedented authority to retired Gen Pervez Musharraf to amend the Constitution (the incumbent chief justice was also a member of the bench).
The favour was ‘repaid’ by the general by the enhancement of the retirement age of judges of the Supreme Court to 68 years and for a judge of the high court to 65 years, through the Legal Framework Order 2002.
This ‘concession’ was later withdrawn in the 17th Amendment and the age of retirement reverted to 65 and 62 years; resultantly many sitting judges went home the same evening.
The extension in the tenure of service could only be possible through a constitutional amendment in Article 179.
But the numbers suggest that even if the ruling party intends to bring an amendment to enhance the age of retirement of the judges, it lacks the required two-thirds majority of the total membership in parliament.
The honour and respect of esteemed institutions like the judiciary come through strict adherence to honourable conventions. I firmly believe the chief justice of Pakistan would not like to become controversial in the twilight of his career.
Nonetheless, the petition that was filed to seek direction was seemingly a deliberate effort to put the honourable judges in an awkward position. Judges of the superior courts come and go; the most important thing is to have powerful and effective institutions and stick to the law and Constitution even if the heavens fall.
The writer is a lawyer.
No comments:
Post a Comment