Speculation about the tenure extensions of senior members of the judiciary is rife after the federal cabinet on Saturday decided in principle to remove the 65-year-old age limitation for key appointments to posts that can pay up to Rs2 million a month. However, the speculation has caused concern amongst the legal fraternity over the implications of such a move on the wider judiciary and the rule of law.
Some view extensions for the chief justice as part of a move by the government to ensure that judges perceived to share the inclinations of former chief justice Umar Ata Bandial are denied turn-based future promotions as the chief justice by exhausting their tenures.
Sources say that a section within the ruling Pakistan Muslim League-Nawaz (PML-N) believes that like-minded judges of former chief justice Bandial should be stopped from becoming chief justices in the future by introducing legislation which extends the tenure of the incumbent chief justice. They believe such a move would help boost public confidence and trust in the judiciary while safeguarding the top-most tier of the judiciary from manipulation by other powerful organs of the state.
At the moment, Articles 176, 177, and 179 of the Constitution—which determines the composition of the Supreme Court, appointment process, and retirement age—stipulate that judges of the superior courts will retire by the age of 65. However, there is no provision in the Constitution that allows for extending the tenure of either the chief justice or a judge of the Supreme Court or at the high court level.
Legal experts believe that the language of any such legislation would determine the fate of certain judges of the top court, such as Justice Munib Akhtar and Justice Ayesha Malik, and whether they will be able to don the robes of the chief justice or retire before then.
Former Additional Attorney General Tariq Mehmood Khokhar said that this is not a propitious moment for constitutional amendments. He believed that the Parliament was not fully representative and deeply fractured. Khokhar told The Friday Times that the Parliament lacks the constitutional, democratic and moral authority to legislate legitimately.
"Any purported amendment would be subjected to intense digital media scrutiny and accountability, making it indefensible in public before the educated and well-informed citizens," he said, adding that many will be outraged and see the move as a reflection of the weight of raw power.
He further said that our history is replete with such toxic examples, adding, "On September 22, 1977, former dictator Zia ul Haq illegally amended the Constitution."
"Chief Justice Yaqub Ali Khan was replaced by Sheikh Anwar ul Haq. His court validated the Martial Law and empowered Zia to amend the Constitution."
He maintained that the consequences of such judicial action led to the judicial murder of an elected prime minister, the end of our nascent democracy as well as the rule of law, a nationwide purge of the superior judiciary through PCO and much else.
"Such constitutional machinations proved to be disastrous in the past; it could be much worse now in a deeply polarised nation."
Former Pakistan Bar Council (PBC) Vice-Chairman Syed Amjad Shah told The Friday Times that in 2019, the government wanted to extend the tenure of the chief justice of Pakistan by raising the retirement age from 65 to 68.
He said the PBC had opposed such an extension and held conventions on the subject. He, however, added that a constitutional amendment is Parliament's prerogative, and everyone, including the judges, will have to face its positive and negative implications.
Citing the example of extensions granted to officials leading various arms of the government, including the military (the Pakistan Air Force chief recently got a year-long extension), Advocate Shah said that hundreds of lieutenant generals who were in the queue for the post retired without becoming the chief of army staff.
He did not rule out the possibility that if the government legislated to grant extensions to judges, senior judges, who were otherwise in line to become chief justices, could retire without being promoted.
Meanwhile, lawyers affiliated with the Pakistan Tehreek-e-Insaf (PTI), on political or ideological grounds, straightaway opposed the idea of granting an extension to the chief justice.
They pointed to the decisions taken by the incumbent chief justice, Qazi Faez Isa, making it clear that they view certain decisions as biased against the PTI. They refused to accept any legislation by a legislature that they claim lacks legitimacy.
They said Chief Justice Isa's judgement in the intra-party elections case deprived the PTI of its iconic 'Bat' electoral symbol mere weeks before the general elections, which had massive consequences before, during and after the elections. Moreover, they said their reserved seats were snatched from PTI-backed independent candidates because they were not elected as a cogent political party registered for the polls.
"Why was a petition, filed regarding reserved seats, not been fixed [for hearing] by the Supreme Court yet?" asked lawyer Abuzar Salman Niazi, adding, "If the ECP files a petition against the PTI it gets fixed urgently."
"Any constitutional amendment, if passed, regarding age of retirement of the CJP, have a direct nexus with presence/absence of PTI reserve seats?" Niazi asked in a message posted on the social media site 'X' (formerly known as Twitter).
Lawyers of the Professional Group, led by PTI's Hamid Khan, believe that any legislation for an extension in the service of the chief justice by the national assembly 'facilitated' by the chief justice would be a direct conflict of interest.
However, lawyers from the Independent Group, who currently hold key positions in the Supreme Court Bar Association and the Pakistan Bar Council (PBC), argued that the top court's judgements have bolstered Parliament's supremacy to legislate on any issue.
One section of lawyers, however, fears that any legislation by way of a constitutional amendment will not only further divide judges of the Supreme Court but it will also disturb the current equation of seniority. They say that the language of such legislation would determine the fate of those judges who are in queue to become chief justice.
Do rumours serve a purpose?
Senior lawyer Advocate Mian Daud told The Friday Times that rumours of an extension are being deliberately spread to further make Chief Justice Isa controversial so he can be pressured.
"Since accountability within the judiciary has commenced and the supremacy of the Constitution and Parliament is being assured, such news is being spread to make the Chief Justice controversial," explained Daud.
He said that even if the rumours become reality and the Parliament legislates to extend the tenure of the chief justice's service, it will not give the general public the right impression regarding the independence of the judiciary.
"It is possible that the Supreme Court itself may interpret this amendment and declare it to be ultra vires with the basic structure of the Constitution," he said, adding that Chief Justice Isa's judgment had forever buried the doctrine of necessity.
Legal expert, Advocate Hafiz Ahsan Ahmed said that during the regime of former dictator General (retired) Pervez Musharraf, the retirement age of judges of the Supreme Court was increased to 65 years through the 17th Constitutional amendment.
He said that all the judges of that time and since have benefitted from the amendment.
Ahmad added that there is no need for another constitutional amendment to extend the tenure of judges by increasing their retirement age. He warned that such an amendment would not be welcomed nor accepted by the legal community, other stakeholders, or the judges.
He further said that if an extension is given or the retirement age for the chief justice or judges of the Supreme Court is further increased through constitutional amendments, then the same principle will have to be applied to the chief justices or judges at all the high courts of Pakistan which will be an uphill task, not to mention nullify the effect sought.
Likewise, senior politician Mustafa Nawaz Khokhar said rumours abound about a possible constitutional amendment extending Chief Justice Isa's tenure.
"This will blow away any last bits of integrity left of the CJP's office," he said, hoping that Chief Justice Isa would not fall for it.