A Judicial Reform Package (Part I): A case for revisiting the appointment age for a

Judge of a High Court

by Muhammad Usman Ghani

“Let the facts be known as they are…”

A wise Judge once said that “let the facts be known as they are, and the law will sprout from

the seed and turn its branches towards the light.”

Such wise words, attributable to Justice Benjamin N. Cardozo, may perhaps be a fitting

guideline in approaching the convoluted (if not rather precarious) task at hand.

It is indeed a recorded fact of history that the Constitution of Pakistan, 1973, was the first

Constitution in the history of Pakistan to prescribe a Minimum Age Requirement, to be

considered qualified for Appointment as a Judge of a High Court. Neither the 1956

Constitution, nor the 1962 Constitution placed any such restriction. The Constitution of

Pakistan, 1973, in Article 193, as originally enacted, prescribed “forty years” as the

Minimum Age Requirement, to be considered qualified for Appointment as a Judge of a High

Court. Likewise, Article 195 of the Constitution, as originally enacted, prescribed “sixty-two

years” as the Retiring Age for a Judge of a High Court. The difference of the two provided

the Maximum Potential Length of Tenure of a Judge of a High Court, which under the

Constitution, as originally enacted, would have been twenty-two (22) years.

Article 2(4) of the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No.

29 of 2002), was the first occasion when the Minimum Age Requirement to be considered
qualified for Appointment as a Judge of a High Court of "forty" years, occurring in clause (2)

of Article 193 of the Constitution of Pakistan, 1973, was modified and substituted with

"forty-five" (with effect from October 9, 2002). The said Article also substituted the

prescribed “sixty-two years” as the Retiring Age for a Judge of a High Court with “sixty-five

years”, reducing the Maximum Potential Length of Tenure of a Judge of a High Court to

twenty (20) years.

The decision to increase the Retiring Age for a Judge of a High Court to “sixty-five years”,

however, was reversed by Article 7 of the Constitution (Seventeenth Amendment) Act, 2003

(3 of 2003), with effect from December 31, 2003. This further reduced the Maximum

Potential Length of Tenure of a Judge of a High Court to seventeen (17) years, since the

Minimum Age Requirement to be considered qualified for Appointment as a Judge of a High

Court remained forty-five years.

Enter the Eighteenth Amendment. Apart from Section 2 repealing (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), vide Section 69(ii) of the Constitution (Eighteenth

Amendment) Act, 2010, the Minimum Age Requirement to be considered qualified for

Appointment as a Judge of a High Court of "forty" years, occurring in clause (2) of Article

193 of the Constitution of Pakistan, 1973, was substituted with "forty-five" and deemed to

have been always so substituted, with effect from the 21st day of August, 2002.

The substitution of “sixty-five” years with “sixty-two” years, in the Retiring Age for a Judge

of a High Court under Article 195 of the Constitution, endeavored by Article 7 of the
Constitution (Seventeenth Amendment) Act, 2003, however, was contrastingly validated by

Article 267B of the Constitution, as it presently stands, which was inserted by Section 93 of

the Constitution (Eighteenth Amendment) Act, 2010, and reads:

“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.”

The cumulative effect of the various amendments introduced by the Eighteenth Amendment

is that the Minimum Age Requirement to be considered qualified for Appointment as a Judge

of a High Court is now "forty-five" years, whilst the Retiring Age for a Judge of a High Court

is “sixty-two years”; making the Maximum Potential Length of Tenure of a Judge of a High

Court seventeen (17) years,

So what’s the beef?

Convoluted legislative history aside, one may ask what is the point of the present inquiry. For

indeed, bearing in mind the (arguably) somewhat polycentric nature of the issue under

reflection, a formidable number of the readers of this present endeavor may, quite reasonably,

consider the same to be a perilous venture. As blatantly manifest, it is after all, a matter of

only five years.

Conversely, one may also (quite reasonably at that) suggest that because such inquiry entails

appreciation of Constitutional provisions bearing a direct nexus with the independence of the

judiciary, it would indeed also be one of public importance (constitutionally speaking). This

would indeed be more so when the same inquiry, as shall be demonstrated, reveals certain

ramifications emanating from the status quo (including infringement of fundamental rights

where applicable) vis-à-vis the average Member of the High Court, the Institution of the High

Court, the average Member of the Supreme Court, the Institution of the Supreme Court, the

Offices of the Advocate Generals several cross-sections of the legal fraternity, and last, but

certainly not least, Pakistani society as a whole.

In the wake of the Honourable Chief Justice of Pakistan, Justice Mian Saqib Nisar’s call for

focus on reform, including judicial reform (coupled with the all too familiar and quite

expected cries in response thereto of “judicial overreach”), it is only too manifest that we all,

including members of the fraternity, have an obligation to speak up for those often termed as

“without a voice”. Rather surprisingly, whilst it is oft reminded that “judges speak through

their judgments”, it is not as often remembered that Judges of the Superior Courts, bound by

strict Code of Conduct, are subjected to various restriction on their freedom of speech; a

freedom, contrastingly, enjoyed by all rest, a restriction often tested by few.

Hence the case:

That any modification to the Constitutional Minimum Age Requirement to be considered

qualified for Appointment as a Judge of a High Court, as prescribed by Clause (2) of Article

193 of the Constitution of Pakistan, 1973, must, by virtue and necessity of its significant

place in the Constitutional framework, have certain consequences vis-à-vis the average
Member of the High Court; the Institution of the High Court; the average Member of the

Supreme Court; the Institution of the Supreme Court; the Office of the Advocate General;

several cross-sections of the legal fraternity; and last, but certainly not least, Pakistani society

as a whole.

When the Constitutional Minimum Age Requirement to be considered qualified for

Appointment as a Judge of a High Court is levelled up, the same amounts to, inter alia, a

violation of the independence of the judiciary, as declared a “Salient Feature” of the

Constitution, by the Honourable Supreme Court, and an infringement of various fundamental

rights of various cross-sections of society, as shall be identified.

Contrastingly, when the Constitutional Minimum Age Requirement to be considered

qualified for Appointment as a Judge of a High Court is levelled down, the same would not

only be conducive to promoting, amongst other things, greater diversity in the Institutions of

the Superior Courts and the Office of the Advocate General, but would, arguably, promote

independence of the judiciary, as noted earlier a “Salient Feature” of the Constitution, and

safeguard various fundamental rights of various cross-sections of society, as shall be sought

to be demonstrated.

The Average Member of the High Court

Addressing firstly the consequences of any modification to the titular Constitutional

Minimum Age Requirement, as originally approved by Clause (2) of Article 193 of the

Constitution of Pakistan, 1973, vis-à-vis the average Member of the High Court, it is humbly

suggested that any such amendment inevitably effects both the “Maximum Length of Tenure”
a Judge of a High Court can potentially benefit from under the Constitution, and the

“diversity” of such typical Member, affecting thereby their “robustness”.

“Maximum Length of Tenure”

It may foreseeably be beneficial to establish the relationship between such Minimum Age

Requirement and the Maximum Length of Tenure that a Judge of a High Court can

potentially enjoy under the Constitution, at the early onset. In that context, if one were to treat

the Retiring Age, emphatically laid down in Article 195 of the Constitution, as a constant,

then the relationship between such Minimum Age Requirement would, demonstrably, be

inversely proportional to the Maximum Length of Tenure that a Judge of a High Court can

potentially enjoy under the Constitutional framework (subject, of course, to further elevation

to the Supreme Court under Article 177, voluntary resignation under Article 206 and removal

from office pursuant to Article 209). The relationship between the afore-referred elements

may be simplified by resort to the following equation:

(T) = (R) – (A); where ((A) ≥ (M))

(where,

(T) = Tenure of a Judge of a High Court;

(R) = Age at time of Retirement as a Judge of a High

Court;

(A) = Age at time of Appointment as a Judge of a High

Court; and
 (M) = Minimum Age Requirement for Appointment as

a Judge of a High Court)

Accordingly, logic dictates that any increase in such Minimum Age Requirement (or the

value (M)), as endeavored by Section 69(ii) of the Constitution (Eighteenth Amendment) Act,

2010, would adversely affect the Maximum Potential Length of Tenure of a Judge of a High

Court (T); and vice versa.

Naturally, the above contention may be verified by using the case of the “ideal candidate”,

who, upon reaching such Minimum Age, is presumed to be otherwise qualified for and duly

meriting appointment to such post. By way of illustration, under Clause (2) of Article 193 of

the Constitution of Pakistan, 1973, as originally enacted, such an ideal appointment would

have entailed a Maximum Potential Tenure of twenty two (22) years, in legitimate reward of

such exceptionalism:

(T)= 62 – (A) ((A) ≥ 40)

(T) = 62 – 40

(T) = 22 years

Contrastingly, under Clause (2) of Article 193 of the Constitution of Pakistan, 1973, as

sought to be amended by Section 69(ii) of the Constitution (Eighteenth Amendment) Act,

2010, such an ideal appointment would now entail a Maximum Potential Tenure of only

seventeen (17) years:

 (T) = 62 – 45

(T) = 17 years

Therefore, as verified amply hereinabove, any leveling up of the Minimum Age Requirement,

to be considered qualified for Appointment as a Judge of a High Court, necessarily has a

depreciative effect on the Maximum Length of Tenure that an appointee can potentially enjoy

under the Constitution.

Indeed, logic would further dictate that such Maximum Length of Tenure, as originally

guaranteed upon a conjunctive appreciation of Articles 193 and 195 and, further, secured by

Article 209(7) of the Constitution of Pakistan, 1973, must be presumed to be reasonable,

adequate, proportionate and, a fortiori, arrived at by the Constitution framers after extensive

balancing of competing legitimate objectives. For, with the utmost respect, it would be quite

oxymoronic for a Constitution, emphasizing so immensely on the “reasonableness” of the

restrictions it permits (arguably, to the point of accepting it as a “constitutional axiom”), to

play fraud upon its own text and restrict such tenure in an unreasonable manner. This,

coupled with the historical fact, noted hereinabove, that the Constitution of 1973 was the first

Constitution of Pakistan ever to include a Minimum Age Requirement to the qualification

criteria for Appointment as a Judge of a High Court, further reinforces the presumption that

the tenure so guaranteed was only determined after meaningful deliberation and careful

reflection upon the conditions prevalent at the time.

Of course, a reasonable reader, at this juncture, may (quite rightly) postulate: not all Judges of

the High Court are appointed at the Minimum Age, and, as a consequence, have an uncertain

length of tenure, dependent on their age at time of appointment, within the range provided by

the maximum set. If that were so, then would not the “Maximum Length of Tenure” be

relatively irrelevant when compared with the “Average Length of Tenure”? Naturally, such

statement may arguably be rebutted by highlighting the fact that whilst such Maximum

Length of Tenure is not representative of the “Average Length of Tenure”, it is one of the

factors upon which such “Average Length of Tenure” is both dependent upon and directly

proportional to.

So why is length of tenure so important?

If one is entitled to say without qualification that there is no correlation between prior judicial

experience and fitness for the functions of the Superior Courts (Frankfurter, Felix. "Supreme

Court in the Mirror of Justices” University of Pennsylvania Law Review 105 (1957) at Page

795, quoted in Al-Jehad Trust v Federation of Pakistan (PLD 1996 SC 324)), one could also

logically postulate, as a corollary, that longer tenures would be more conducive to the

average High Court Judge’s pursuit of relevant judicial experience. This would, naturally,

entail that there is a direct link between the duration of term of a Judge of a High Court and

the quality of judicial power dispensed thereby; any modification or alteration to the former

must unavoidably entail consequences for the latter.

Likewise, the link between de facto Judicial Independence and the Average Length of Tenure

of the Members of the Superior Courts is both academically well-documented and critically

verified (Feld, Lars P. and Voigt, Stefan, “Economic Growth and Judicial Independence:
Cross Country Evidence Using a New Set of Indicators” (April 2003, CESifo Working Paper

Series No. 906) (Available at: http://ssrn.com/abstract=395403)). Such a link between

adequacy of Length of Tenure and the Independence of the Judiciary has further been

recognized in various international legal instruments, reference to which may be permissible

with a view to ensure legal uniformity with the comity of nations (Al-Jehad Trust v

Federation of Pakistan (1999 SCMR 1379 at Paragraph 16)), and, consequently, compliance

with the dictates of Articles 29(1) and 40 of the Constitution. In this regard, it would perhaps

be advantageous to refer to 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 at Milan from 26 August to 6 September 1985 and endorsed by

General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

Article 11 of the Principles emphatically declares:

“11. The term of office of judges, their independence,

security, adequate remuneration, conditions of service,

pensions and the age of retirement shall be adequately

secured by law.”

Accordingly, it would certainly not be impermissible to suggest that the comity of nations of

this world, concur upon placing a liberal construction to the concept of “security of tenure”,

so as to necessarily include within its purview security of a term of an adequate duration.

It would further indeed be disingenuous to advocate the idea that the same Constitution

framers, whilst meticulously laying down under Article 207 of the Constitution the various

vocational disabilities a person who has held office as a Judge of a High Court is subjected to,

were unconscious of the harsh social reality (as confirmable from a perusal of the common
history of the nations of this world), that as Judges approach the culmination of their tenures

in office, their susceptibility and vulnerability to the influence of factions who may affect

their future employment prospects may, gradually but definitely, increase. Additionally, it

would be equally naïve and futile to controvert the social realism reflected in the contention

that even absent overt external pressure, judges looking ahead to their next jobs may shape

their opinions accordingly (USAID, “Guidance for Promoting Judicial Independence and

Impartiality” (Washington D.C., revised ed. 2002) at Page 21 (Accessible at:

pdf.usaid.gov/pdf_docs/PNACM007.pdf)). Whilst it is beyond the imagination of the present

author, being but a humble and obedient officer of the High Courts, to assert that such

conditions are reflective of the contemporary Superior Judiciary of Pakistan (in whom, it goes

without saying, that such humble author has the utmost and most unwavering confidence and

pride), the collective wisdom, extensively noted hereinabove, has only been made reference

to with the view of highlighting the detrimental effects of any reduction to such duration of

term, upon the publicly perceived impartiality of the typical Member of the Bench.

Needless to emphasize, the observations made hereinabove, when analyzed in conjunction

with the fact that the Constitution framers were mindful enough to place both the Minimum

Age Requirement and the Retiring Age upon a Constitutional footing, further reinforce and

lend credence to the presumption that the provisions of Articles 193 and 195 of the

Constitution, guaranteeing such Length of Tenure (as originally deemed adequate), had not

been inserted in vain, and, therefore, were to be secured from unwarranted interference from

the other branches of government.

As elucidated hereinabove, the length of a judge’s term is, one has humbly sought to

demonstrate, as critical to their ability to judge impartially, as are factors such as the security
of such tenure from unwarranted removal and transparency in the appointment process. The

Length of Tenure of a Judge of a High Court is, thus, inextricably linked with the

constitutional appointment process (the Minimum Age Requirement concurrently both

affecting such Length of Tenure and forming a constituent part of the qualifications for

appointment), and the security of such tenure (which security, it is submitted, must

necessarily extend to ensuring a tenure of an adequate length). Consequently, any erosion

thereof would, prima facie, be detrimental to the status, dignity and institutional

independence of the High Courts of Pakistan. Reliance may readily be placed upon Munir

Hussain Bhatti v Federation of Pakistan (PLD 2011 SC 407 at Paragraph 44); Benazir Bhutto

v President of Pakistan (PLD 1998 SC 388 at Paragraph 72); Mehram Ali v Federation of

Pakistan (PLD 1998 SC 1445); Al-Jehad Trust v Federation of Pakistan (PLD 1996 SC 324

at Paragraph 14).

“Diversity” and “Robustness”

Again, if one were to maintain the Retiring Age, stipulated in Article 195 of the Constitution,

as a fixed element, then any augmentation of the Minimum Age Requirement would also,

surely, have an adverse bearing on the diversity of the average Judge of the High Court,

affecting the quality and robustness of the judicial power exercised thereby.

Of course, the relationship between such Minimum Age Requirement and the diversity of the

profile of the average Judge of the High Court is blatant and requires little elucidation save

the comment that any qualification, by its very nature, has a restrictive effect on the

anticipated selection pool, and the appointments accordingly made therefrom. As evident, a

necessary outcome of the enhancement of the Minimum Age Requirement, made by virtue of

Section 69(ii) of the Constitution (Eighteenth Amendment) Act, 2010, is to automatically and
swiftly exclude from such pool all potential candidates, aged between forty (40) and forty five

(45), who may otherwise be qualified in terms of Sub-Clauses (a) to (c) of Clause (2) of

Article 193 of the Constitution of Pakistan, 1973, and may very well thoroughly meriting

appointment to such office. This mechanical social exclusion, if one may be permitted to

submit as much, sharply compromises the diversity of the profile of the average Judge of the

High Court, adversely impacting the merit thereof.

One may at this juncture reasonably inquire: but how does “diversity” impact “merit”? In

response, one may, arguably, highlight that “diversity” and “merit”, far from being

appreciated as mutually exclusive virtues, are neither incompatible with nor completely

divorced from each other. Since the “merit” of the appointee, with reference to the

requirements of the job under consideration, is to be the overriding selection criteria, as was

conclusively held to be a truism in an Islamic Welfare State by this Honourable Apex Court

(in Al-Jehad Trust v Federation of Pakistan (PLD 1996 SC 324 at Paragraphs 39 and 79) and

Maqbool Ahmad Qureshi v The Islamic Republic of Pakistan (PLD 1999 SC 484)), then,

emphatically, such “merit” must, to a certain degree, be fundamentally determined, inter alia,

with reference to a potential candidates life experiences and expertise. If that were so, it

would certainly be fruitful to emphasize at this stage that appointments from age-diverse

backgrounds bring with them into the judiciary their own unique experiences and expertise,

contributing invariably to the quality and robustness of the average Member of the Bench,

and the exercise of judicial power thereby. For that reason, to some extent “merit” is always

defined, at least in part, by reference to the likely and desired available pool of candidates (K.

Malleson, ‘Rethinking the Merit Principle in Judicial Selection’ (2006) 33 J. of Law and

Society 126-140).
Commentators further suggest that Judges decide cases upon background understanding,

based on fundamental values of the system. Those understandings are Judge-made and are

based on the subjective interpretation of the Judge. If the judiciary is not reflective of society

as a whole, the adjudication may be based on background understandings, as strongly colored

by a narrower set of values (M.P. Singh, “"Merit" in the appointment of Judges” ((1999) 8

SCC (Jour) 1)). Consequently, drawing on a wider, more diverse pool not only increases

competition between the potential candidates but also increases the quality of those appointed

on merit, fostering the progress of judicial diversity; the vice versa being equally valid.

Obviously, if the judicial institutions concerned are to benefit from the different attributes

that varied experience brings, then the seminal role played by age-diverse appointments in

bridging generational gaps between such experience and expertise, is indispensable.

As a result, it is may not be wholly unreasonable to suggest that “diversity” forms a vital

constituent of and is further inextricably linked to “merit”. Any attrition of the former, as

successfully accomplished by the Eighteenth Amendment, must, inevitably, also be abrasive

of the latter, as applicable to the case of the average Member of the High Court. This

essentially impairs the ostensible quality of judicial power, exercised by such average

Members of the High Court, and, for that reason, is also injurious to the status, dignity and

institutional independence of the High Courts of Pakistan. Therefore, upon the basis of the

premise so established, any leveling up of the Minimum Age Requirement, and particularly

of the nature contemplated by Section 69(ii) of the Constitution (Eighteenth Amendment)

Act, 2010, would, hence, be contrary to the constitutional mandate for the establishment of an

order wherein “the independence of the judiciary shall be fully secured”; as made an express

and substantive part of the Constitutional fabric by virtue of Article 2A of the Constitution.

The enhancement of the Minimum Age Requirement so sought, to the extent that it erodes the
Maximum Potential Length of Tenure of a Judge of a High Court and, further, fundamentally

impairs the perceived quality of judicial power, exercised by such average Members of the

High Court, is, in the circumstances, an infringement of the right of the citizenry to have free,

fair and equal access to independent and impartial Courts, thus violating the guarantees

contained within Articles 4, 9 and 25 of the Constitution of Pakistan, 1973. Reliance may

readily be placed upon Sh. Riaz-ul-Haq v Federation of Pakistan (PLD 2013 SC 501); Baz

Muhammad Kakar v Federation of Pakistan (PLD 2012 SC 923))

The Institution of the High Court

That dealing next with the case of the Institution of the High Court, it is submitted that any

revision of such Constitutional Minimum Age Requirement, as approved by Clause (2) of

Article 193 of the Constitution of Pakistan, 1973, must inevitably effect both the diversity of

the corpus of the High Courts of Pakistan (affecting thereby the robustness of such social

institutions) and its legitimacy. It is submitted that such minimum robustness and legitimacy,

as sought to be achieved and guaranteed by the Constitution (as originally framed), are an

integral constituent of our cultural heritage, as discernibly guaranteed upon a conjunctive

appreciation of the Preamble and Articles 2A, 3, 4, 8, 9, 14, 17, 18, 25, 27, 28, 33, 34, 36, 37,

193 and 195 of the Constitution of Pakistan, 1973.

“Robustness” of the Institution

Since the adverse effect of such amendment, upon the “diversity” of the average Member of a

High Court and, consequently, their “merit”, has already been highlighted hereinabove the

same requires little reiteration. It is, however, submitted, in supplementation, that the effect of

the modification so made becomes more pronounced, when viewing the High Courts as an
institutional whole. The relevancy of such an assertion, when viewed in the unique milieu of

our particular legal system, is perhaps best highlighted whilst appreciating both judicial

power and the institutions within which it vests as sacred trusts. Such an appreciation is

deeply rooted in our local legal jurisprudence (Workers Party Pakistan v Federation of

Pakistan (PLD 2012 SC 681 at Paragraph 80); Dr. Mobashir Hassan and others v Federation

of Pakistan (PLD 2010 SC 265 at Paragraph 24); Shazia Munawar v Punjab Public Service

Commission (PLD 2010 Lah 160 at Paragraph 26)), and finds expression in the opening verse

of the Preamble to the Constitution:

“Whereas sovereignty over the entire Universe belongs to

Almighty Allah alone, and the authority to be exercised by the

people of Pakistan within the limits prescribed by Him is a

sacred trust;”

This “trust doctrine” has long been recognized by this Honourable Court as an immutable

and unalterable norm which, apart from being one of the fundamental principles enshrined in

the Holy Qur'an (Pt.3, Ch.3, Al’Imran, Ay. 26), has also enjoyed a unique locus in our

particular Constitutional history by virtue of its inclusion in the Preamble of every

Constitution that has ever governed our nation. The basic concept underlying this unalterable

principle of sovereignty is that the entire body politic becomes a trustee for the discharge of

sovereign functions. Since in a complex society every citizen cannot personally participate in

the performance of the trust, the body politic appoints State functionaries to discharge these

functions on its behalf and for its benefit, and has the right to remove the functionary so

appointed by it if he goes against the law of the legal sovereign, or commits any other breach

of trust or fails to discharge his obligations under the trust. It is under this system that the
Government becomes a Government of laws and not of men, for, no one is above the law

(Asma Jilani v Government of Punjab (PLD 1972 SC 139)).

Likewise (if one were permitted to bring the oft-overlooked posterity into the discussion at

present juncture), contemporary constitutionalism also dictates that the Constitution of a

country is the Fundamental or Supreme Law of the Land and is meant to serve not only this

generation but also generations yet unborn (Attorney-General v Unity Dow ([1992] LRC

(Const) 623 CA)). At a down-to-earth political-sociological level, it is intended to perpetuate

a certain power arrangement; as a foundational document, the founders’ ambition is to

perpetuate a vision of social order, or, at the very least, its fundamental underlying values

concerning government and nation (“The Oxford Handbook of Comparative Constitutional

Law” at Page 437). Indeed, if one were to proceed with the interpretive function, appreciating

this intention of perpetuity inherent in every written constitution, it would conceivably be

valuable to note that the reference to the “people of Pakistan”, as incorporated within the

opening words of our Constitution, duly emphasized and reproduced hereinabove, must

necessarily be construed as possessing a “temporal” dimension, which brings within the

scope of such trust generations past, present and future. One can hardly deny the veracity of

the assertion that the continued sustainability of the institutions, exercising the authority so

conferred, is only possible if we, the living, view all public institutions as a sacred trust,

passed to us by our ancestors, to be enjoyed and passed on to our descendants, for their

respective use and benefit. As members of the present generation, we hold such institutions in

trust for future generations; at the same time, we are beneficiaries, entitled to use and benefit

from them.
Naturally, such a "sacred trust" automatically conveys to every generation both rights and

responsibilities, in their dual capacity as beneficiaries and trustees. This, most significantly,

implies that future generations, being equal beneficiaries though not presently trustees, have

rights as well, emphasizing the fiduciary nature of their interrelationship with the present

generation. Indubitably, the rights so conferred upon future generations, may only have

meaning if we, the living people, respect them by observance of our ensuing responsibilities

towards such upcoming generations and, further, if this respect is universal, transcending

differences among countries, religions, and cultures. It would undeniably be beneficial to

note in such context that this Honourable Court has not been shy to recognize the existence of

such inter-generational duties and obligations. Reference need only be made to In the matter

of: Petition Regarding Miserable Condition of School (2014 SCMR 396 at Paragraph 153),

Syed Mubashir Raza Jaffri and others v Employees Old-Age Benefits Institutions (EOBI)

through President of Board, Board of Trustees and others (2014 SCMR 949 at Paragraph

20), Abdul Rashid alias Teddi v The State (2013 SCMR 1281 at Paragraph 14) in order to

find support for the universalism of such averment. Accordingly, all generations are

inherently linked to other generations, past and future, in using the common patrimony of

such sacred trust, which relationship and use must, inexorably, be governed by notions of

“inter-generational equity and fairness”, in order to ensure the sustaining perpetuity of such

institutions, and compliance with the mandate of Article 9 of the Constitution. Thus, “inter-

generational fairness” entails that all generations have an equal place in relation to their use

and benefit of such institutions, there being no basis for preferring the present generation over

future ones, for the purpose of distribution of such use or benefit. Partnership between

generations is, accordingly, a corollary to equality, as envisioned by Article 25 of the

Constitution.
This partnership, in turn, places an obligation upon every generation to conserve the diversity

of the corpus of such social institutions as the High Courts of Pakistan, so as not to unduly

and unreasonably restrict, inter alia, the individual and collective choice and autonomy of

subsequent generations, which must be seen as an aim of equality itself (Fredman, Sandra;

Spencer, Sarah (2003) “Age as an Equality Issue: Legal and Policy Perspectives.” (Hart

Publishing)). The raison d'être behind this obligation is the “conservation of options”,

available to future generations, for the purposes of solving their tribulations and satisfying

their own values. Moreover, this principle of “conversation of options”, which is both

normative and foundational of the concept of “inter-generational equity”, necessitates all

subsequent generations to be entitled, as a bare minimum, to diversity comparable to that

enjoyed by previous generations (Weiss, Edith Brown. "In Fairness To Future Generations

and Sustainable Development." American University International Law Review 8, no. 1

(1992): 19-26).

The observations made hereinabove, apply with particular veracity in a State which professes

Islam to be its State Religion (Article 2 of the Constitution of Pakistan, 1973). Islamic Legal

Tradition regards man as having inherited "all the resources of life and nature", and, as a

result of such devolution, having certain religious duties to God in using them. Each

generation, whilst entitled to the use of such resources, must care for them and pass them to

future generations in no less favorable condition than they inherited them in. The utilization

and sustainable use of these resources, is in Islam, the right and privilege of all people.

Hence, man should take every precaution to ensure the interests and rights of all others since

they are equal partners on Earth. Similarly, he should not regard such ownership and use as

restricted to one generation above all other generations. It is, rather, a joint ownership in

which each generation uses and makes the best use of such resources, according to its need,
without disrupting or upsetting the interests of future generations. Therefore, under Islamic

Legal Jurisprudence, man should not abuse, misuse or distort these resources as each

generation is entitled to benefit from them but is not entitled to own them permanently

(“Islamic Principles for the Conservation of the Natural Environment”, 13-14 (IUCN and

Saudi Arabia, 1983)).

Such claim may further be argued to be shown rooted in the Socialist Legal Tradition, which

recognizes that we are only “stewards” of the Earth. Karl Marx, for example, states that all

communities, even if taken together, are only possessors or users of the Earth, not owners,

with obligations to protect the Earth for future generations ("Selbst eine ganze Gesellschaft,

eine Nation, ja alle gleichzeitigen Gesellschaften zusammengenommen sind nicht

Eigentuemer der Erde. Sie sind nur ihre Besitzer, ihre Nutzniesser, und haben sie alsbond

patres familial den nachfolgenden Generationen verbessert zu hinterlassen.", Karl

Marx, Collected Works (1985)).

Verily, a perusal of the historical experience of nations, in the context of the reform of their

respective judicial systems, and substantial jurisprudence on the subject matter, leaves no

doubt in relation to the veracity of the assertion that “diversity”, like “quality”, contributes to

the “robustness” of any system. This claim, it is vigorously urged, is equally applicable to

and valid for judicial systems, which are as organic as the Constitution that creates them, and

as living as the individuals that man them. Upon the foundation of what has been stated

hereinabove, it is vehemently insisted that the Constitution framers, as manifest from their

treatment of both the judicial power and the institutions within which it vests (including, inter

alia, the High Courts of Pakistan) as sacred trusts, aspired to conserve, as a bare minimum,

the diversity (and naturally the robustness) of their corpus, as originally envisioned by
Articles 193 and 195. Such an intention is clearly discernable from a harmonious perusal of

the Constitutional framework of Articles 3, 4, 9, 14, 18, 25, 27, 33 and 37, which provisions,

it is beseeched, were designed by the Constitution framers to provide subsequent generations

with a robust and flexible heritage, with which to try to achieve the realization of the

constitutional mandate of creation of an egalitarian society, based on Islamic concepts of

social justice. One needs little reminder that such a directive is now a substantive part of the

Constitution, by virtue of insertion of Article 2A thereto; it is forcefully maintained that this

objective stands frustrated as a result of the leveling up of the Minimum Age Requirement,

endeavored by Section 69(ii) of the Constitution (Eighteenth Amendment) Act, 2010.

“Legitimacy” of the Institution

To the extent that any augmentation of the Minimum Age Requirement, prescribed by Clause

(2) of Article 193 of the Constitution, would, by its very nature (and if the Retiring Age,

emphatically laid down in Article 195, were kept as a constant), be socially exclusive, it is

humbly argued and suggested in the present part that such an alteration is likely to have a

depreciative effect on the public’s confidence in the Institution of the High Courts, affecting,

consequently, their institutional legitimacy. Such social exclusion, if one may advocate, is not

only injurious to established democratic values of social justice, but also runs contrary to the

avowed aims of equality in a democratic society i.e. the facilitation of choice or autonomy,

the protection of human dignity and the enhancement of participative democracy or social

inclusion (Fredman, Sandra; Spencer, Sarah (2003) “Age as an Equality Issue: Legal and

Policy Perspectives.” (Hart Publishing)):

Admittedly, a workable democracy must be pillared in an unwavering commitment to rule of

law and due process, with the vision to develop inclusive and participatory institutions,
which form the bedrock and engines of growth of any progressive nation (Barrister Sardar

Muhammad v Federation of Pakistan (2013 PLC (C.S.) 625)). If the Superior Courts, and

their empowerment by the People through the Constitution, have to be seen as constituting

the bedrock of democratic rule (Muhammad Azhar Siddique v Federation of Pakistan (PLD

2012 SC 774 at Paragraph 7)), then competence in the judiciary must necessarily be

combined with legitimacy, if the institutions are to survive and prosper as robust caretakers of

the rule of law. This, as reflected from the common history of the nations of the world, is a

notion fundamental to the preservation of every aspect of democratic society (Shami

Chakrabarti CBE, “The Judiciary: Why Diversity And Merit Matter”, in “Judicial

Appointments: Balancing Independence, Accountability and Legitimacy” (2010)).

Such collective historical experiences also reveal that a socially inclusive judiciary that

reflects the diversity of its country’s demographic is more likely to garner public confidence,

a vital element in determining any democratic institutions legitimacy (M.P. Singh, “"Merit"

in the appointment of Judges” ((1999) 8 SCC (Jour) 1)). As a result, selection of a diverse

judiciary is as essential as that of a competent and honest one, both for the maintenance and

preservation of such public confidence in the judicial system and, accordingly, for sustaining

the institutional legitimacy of the judicial organ (USAID, “Guidance for Promoting Judicial

Independence and Impartiality”).

Consequently, in a sense, the constitution of the Bench is as important as the arguments are of

the learned counsel, and as important as the precedents are of the Court (“Basic Structure

Constitutionalism” at Page 156). Indeed, the very importance of appeals, precedent, general

legal discourse and the nature of public perception and scrutiny of such seminal public

institutions necessarily entails that a greater diversity of composition would benefit both the
competence and legitimacy of the institution as a whole (Shami Chakrabarti CBE, “The

Judiciary: Why Diversity And Merit Matter”, in “Judicial Appointments: Balancing

Independence, Accountability and Legitimacy” (2010) at Page 72). Since the rule of law

depends upon public confidence and public acceptance of the judicial system, therefore,

anything which tends to undermine that confidence in the judicial system must be strongly

discountenanced (Muhammad Mansha v The State (PLD 1996 SC 229)).

This, invariably, requires that institutional design and the configuration of its governance

must be sensitive to the Fundamental Rights of the people and its vision aligned with the

Principles of Policy. These broad principles, translated into institutional literature, require the

relevant public institution (the High Courts of Pakistan in this case) to be open, equitable,

accessible, transparent, rule-based, participatory and inclusive (Barrister Sardar

Muhammad v Federation of Pakistan (2013 PLC (C.S.) 625)). Such a requirement, if one

may submit, apart from fostering the progress of enhancement of participative democracy, is

further conducive to the facilitation of choice or autonomy and the protection of human

dignity. One needs little reminder of this country’s Superior Courts observations in Mian

Muhammad Nawaz Sharif v President of Pakistan (PLD 1993 SC 473), and Muhammad

Azhar Siddique v Federation of Pakistan (PLD 2012 SC 774), to conclude that the

Fundamental Rights, guaranteed, inter alia, in Articles 14 and 17, encompass the right to

demand a political democratic structure of governance where rule of law is supreme and the

right to participate in the establishment and management of such governance. More recently,

the Supreme Court has, in Ishtiaq Ahmed v Honourable Competent Authority through

Registrar, Supreme Court (2016 SCMR 943), defined “access to justice”, recognized as a

right under Article 9 of the Constitution by the Superior Courts, in the following manner:
 “12. Access to justice has been defined as an equal right

to participate in every institution where law is debated,

created, found, organized, administered, interpreted and

applied…”

Naturally, Superior Courts are institutions where law is both debated and interpreted (if not

created, if one were to subscribe to that particular theory; the dissident may of course prefer

the verb “found”). These rights are delineated and demarcated in the Constitution of every

country and, verily (as noted in Mian Muhammad Nawaz Sharif v President of Pakistan (PLD

1993 SC 473)), the very notion of “Political Justice”, central to every Constitution,

necessitates provision in the same for equal rights to engage and participate in public affairs.

Indeed, one has to only appreciate Clause (f) of Article 37 of the Constitution, to discover the

basic blueprint of such institutional design, as envisioned by the Constitution framers:

37. Promotion of social justice and eradication of social

evils.

The State shall:

(f) enable the people of different areas, through

education, training, agricultural and industrial

development and other methods, to participate fully in

all forms of national activities, including employment in

the service of Pakistan;

If, as was conclusively held to be the case by this Honourable Court, the Judges and Chief

Justices of the Superior Courts are included within the scope of the term "in the service of

Pakistan" (Muhammad Asghar Khan v Mirza Aslam Baig, Former Chief of Army Staff (PLD

2013 SC 1)), then it may be urged that the policy mandate, contained within Clause (f) of

Article 37 of the Constitution, reproduced hereinabove, is duly applicable to any proposed

institutional reconfiguration of the Superior Courts; with which vision such institutional

reform must necessarily be aligned. A cursory examination of Clause (f) of Article 37 of the

Constitution would also disclose that such provision also provides the means with which to

attain such ends, namely (and particularly in the case of recruitment to the Superior

Judiciary), through education and training, reinforcing the Constitutional mandate of social

inclusion.

It may thus be assumed with certainty that our Constitution is imbued with an ethos and

guiding spirit, which not only fortifies it but also obliges the organs of the State and their

functionaries to act in conformity with such guiding spirit. This ethos, as noted by this

Honourable Apex Court (In re: Suo Motu Case No. 10 of 2009 “Complaint regarding

establishment of Makro-Habib Store on playground” (2010 SCMR 885)), is discernible, inter

alia, from the Preamble, read in conjunction with Article 2A, Article 3 and the Principles of

Policy; and is further legally enforceable (Benazir Bhutto v Federation of Pakistan (PLD

1988 SC 416)). One needs little reverberation of the observations made in the preceding

Paragraphs to conclude that the ethos so perceptible, particularly in the context of the

institutional reform of the Superior Courts, is that of social inclusion. Such is the mandate of

Articles 2A, 3, 4, 8, 9, 14, 17, 18, 25, 27, 28, 33 and 37 of the Constitution.
If, as may be academically verified, the selection of a Superior judiciary that is a fair

reflection of the diversity of its country’s demographic is conducive to garnering public

confidence (a crucial factor in determining the judicial organs legitimacy), then any socially

exclusive modification to the original Constitutional framework, would, consequently, be

depreciative of such legitimacy. This observation, it is humbly submitted, is equally valid for

an exclusionary qualification founded solely on the basis of age, which exclusion, if one may

point out at this juncture, is upon the basis of an event beyond human control, running

contrary to the Constitutional objective of protection of human dignity, as sought to be

achieved by, inter alia, Articles 14 and 25 of the Constitution. Therefore, the increase in the

Minimum Age Requirement, endeavored by Section 69(ii) of the Constitution (Eighteenth

Amendment) Act, 2010, whereby the High Courts of Pakistan, in an inexplicable and

perfunctory manner, have been deprived of representation from an entire age-group of

potential candidates, identifying themselves with different cross-sections of Pakistani society,

is offensive to the ethos of the Constitution.

There can be very little debate over the veracity of the statement that by virtue of the very

nature of judicial work, it is vital that public confidence is maintained and preserved in the

justice system. If a country is known by the robustness of its public institutions (of which

genus the Superior Courts are a species), then developing sound, strong and diverse public

institutions must be considered a Constitutional obligation, with its foundations pillared in

democracy, equality, tolerance, social, economic and political justice (Barrister Sardar

Muhammad v Federation of Pakistan (2013 PLC (C.S.) 625)). For (as noticed hereinabove)

greater diversity breeds greater merit. It is vehemently insisted that the Constitution framers,

as apparent from their treatment of such public institutions as sacred trusts, envisioned such

an obligation to be akin to a “trust obligation”, complemented further by the accepted

wisdom of “inter-generational equity and fairness”, as enshrined within Articles 9 and 25 of

the Constitution. This noble vision, if one may urge, stands frustrated as a result of the

leveling up of the Minimum Age Requirement, contemplated by Section 69(ii) of the

Constitution (Eighteenth Amendment) Act, 2010, which action is a direct breach of the

concomitant duties to conserve the diversity and legitimacy of the corpus of the afore-noted

institutions. Consequently, the increment so sought, runs contrary to the Constitutional ethos

(which itself is an integral constituent of our cultural heritage, conservable under Article 28),

violating the guarantees contained within Articles 2A, 3, 4, 8, 9, 14, 17, 25, 28 and 37 of the

Constitution of Pakistan, 1973.

The Average Member of the Supreme Court

Adverting to the case of the average Member of the Supreme Court, it is noted, for the sake

of relative brevity and to avoid repition, that the observations made hereinabove vis-à-vis the

necessary effects of any increment to the Constitutional Minimum Age Requirement upon the

Maximum Length of Tenure, and also the diversity of a Judge of a High Court, apply mutatis

mutandis and with greater force to the average Member of the Supreme Court.

Maximum Length of Tenure

The inquiry to establish the veracity of the preceding assertion, in the context of the

Maximum Length of Tenure of a Judge of the Supreme Court, may be confirmed upon a

mere appreciation of the historical fact that not even once since 1973, in the humble

knowledge of the author, has a direct appointment been made to the Supreme Court, from the

Bar, as envisioned by Article 177(2)(b) of the Constitution. Of course, if memory serves one

correctly, former Chief Justice of Pakistan, Justice (R) Jawwad S. Khawaja, might technically
have been appointed to the Supreme Court under Article 177(2)(b) of the Constitution;

however it may also be beneficial to highlight the fact that his Lordship served as an

Honourable Judge of the Lahore High Court, before vacating the Bench in the prelude to

what eventually culminated in the historic triumph of the Constitution on 15th March, 2009.

This practice of non-reliance upon Article 177(2)(b) of the Constitution, apart from

effectively rendering the same provision nugatory (which would be impermissible if one were

to pay heed to the cardinal rule of construction of statutes that no words were to be treated as

surplusage or redundant (Begum Nusrat Ali Gondal v Federation of Pakistan and others

(PLD 2013 SC 829); Mr. Fazlul Quader Ch. v Mr. Muhammad Abdul Haque (PLD 1963 SC

486))), has an unavoidably depreciative effect on the Maximum Length of Tenure a Judge of

the Supreme Court can potentially benefit from under the Constitution.

It is intriguing to note that Clause (2) of Article 177, unlike Clause (2) of Article 193 of the

Constitution, does not provide a Minimum Age Requirement for Appointment as a Judge of

the Supreme Court. Indeed, the only qualifications that the Constitution demands are that the

potential candidate be a citizen of Pakistan and that they be otherwise qualified in terms of

either Sub-Clause (a) of Clause (2) of Article 177 or Sub-Clause (b) thereof. As it would

appear from a perusal of history that the appointing authority has, by practice, shown a

complete aversion to direct appointments to the Supreme Court from the Bar (as envisioned

by Article 177(2)(b) of the Constitution), the unfaltering reliance on Sub-Clause (a) of Clause

(2) of Article 177 for the purpose of recruitment to the Supreme Court, at the expense of

practically rendering nugatory Sub-Clause (b) thereof, has an unavoidable consequence. The

practice of exclusively recruiting from the ranks of Judges of a High Court has the effect of

making the Maximum Length of Tenure that a Judge of the Supreme Court can potentially
enjoy under the Constitution dependent upon, inter alia, the age at which such Member was

appointed as a Judge of a High Court.

The veracity of the preceding assertion may be confirmed by using, once again, the case of

the “ideal candidate”, who, subsequent to appointment as a Judge of a High Court, at the

minimum possible age, and, upon serving in such capacity for a period not less than five years

(in terms of Sub-Clause (a) of Clause (2) of Article 177), is presumed to be otherwise

qualified for and duly meriting appointment as a Judge of the Supreme Court. By way of

explanation, if such an “ideal candidate” had been appointed under Clause (2) of Article 193

of the Constitution of Pakistan, 1973, as originally enacted, the appointment so made would

have entailed a Maximum Potential Tenure of twenty (20) years as a Judge of the Supreme

Court:

(T)= 65 – (A) ((A) ≥ 40 + 5)

(T) = 65 – 45

(T) = 20 years

Contrastingly, if such appointment were by virtue of Clause (2) of Article 193 of the

Constitution of Pakistan, 1973, as sought to be amended by Section 69(ii) of the Constitution

(Eighteenth Amendment) Act, 2010, it would now entail a Maximum Potential Tenure of

only fifteen (15) years:

(T) = 65 – 50
 (T) = 15 years

Therefore, as adequately verified, any leveling up of the Minimum Age Requirement, to be

considered qualified for Appointment as a Judge of a High Court, as sought by Section 69(ii)

of the Constitution (Eighteenth Amendment) Act, 2010, necessarily has a depreciative effect

on the Maximum Length of Tenure that an appointee to the Supreme Court can potentially

enjoy under the Constitution.

It is likewise urged, with perhaps even greater enthusiasm, that such Maximum Length of

Tenure for a Judge of the Supreme Court, as originally guaranteed upon a conjunctive

appreciation of Articles 193, 177(2) and 179 and, further, secured by Article 209(7) of the

Constitution of Pakistan, 1973, must also be presumed to be reasonable, adequate,

proportionate and, for those reasons, arrived at by the Constitution framers after extensive

balancing of competing legitimate objectives. Indeed, the various vocational disabilities a

person who has held office as a Judge of a Superior Court is subjected to under Article 207 of

the Constitution, are more onerous in the case of a Judge of the Supreme Court than they are

in that of a Judge of a High Court. Please note the distinction between Articles 207(3)(a) and

207(3)(b) of the Constitution of Pakistan, 1973. Consequently, the detrimental effects of any

reduction to such duration of term, upon the publicly perceived impartiality of the typical

Member of the Bench of the Supreme Court, are much more profound.

“Diversity” and “Robustness”

As highlighted hereinabove, any qualification, by its very nature, has a restrictive effect on

the anticipated selection pool, and the appointments accordingly made therefrom. As further
noted, a necessary outcome of the enhancement of the Minimum Age Requirement, made by

virtue of Section 69(ii) of the Constitution (Eighteenth Amendment) Act, 2010, was to

automatically and swiftly exclude from such pool all potential candidates, aged between forty

(40) and forty five (45), who may otherwise be qualified in terms of Sub-Clauses (a) to (c) of

Clause (2) of Article 193 of the Constitution of Pakistan, 1973, sharply compromising the

diversity of the profile of the average Judge of the High Court. This compromised diversity, if

one may be permitted to submit as much, inevitably creeps into the profile of the average

Judge of the Supreme Court (by virtue of an exclusive reliance upon Sub-Clause (a) of

Clause (2) of Article 177 for the purpose of recruitment to the Supreme Court), arguably

adversely impacting the merit thereof, as has been discussed earlier hereinabove.

Invariably, the Constitution, as originally enacted, envisioned both direct appointments to the

Supreme Court from the Bar (as envisioned by Article 177(2)(b) of the Constitution), and

recruitment from the High Courts as envisioned in Article 177(2)(a) thereof, giving rise to a

principally diverse Supreme Court. Such vision of the Constitution, with regret, stands

frustrated, firstly, by virtue of an exclusive reliance upon Sub-Clause (a) of Clause (2) of

Article 177 for the purpose of recruitment to the Supreme Court and, secondly, courtesy the

amendment introduced by Section 69(ii) of the Constitution (Eighteenth Amendment) Act,

2010.

The Institution of the Supreme Court

That dealing with the case of the Institution of the Supreme Court, it is submitted that the

observations made hereinabove vis-à-vis the necessary effects of any increment to the

Constitutional Minimum Age Requirement upon the diversity (and robustness) of the corpus
of the High Courts of Pakistan and their legitimacy, also apply mutatis mutandis and with

greater force to the Supreme Court. It would perhaps suffice to only maintain that the social

exclusion noted thereat, is augmented, in the case of the Supreme Court, by virtue of the

exclusive reliance upon Sub-Clause (a) of Clause (2) of Article 177 for the purpose of

recruitment to the Supreme Court. This has a depreciative effect on the diversity/robustness

of and the public’s confidence in the Institution of the Supreme Court, affecting,

consequently, its institutional legitimacy.

Indeed, the unique history of our very own judicial system speaks volumes on the subject

matter and reveals the existence of a rich culture of judicial appointments to the Superior

Courts, boasting examples of rewarding exceptionalism in the form of appointments to the

High Courts, at an age lower than the presently set forty five years. Former Chief Justices of

the Supreme Court, appointed as Judges of the High Court before the age of forty-five

include:

Name Age at time of Appointment as

Judge of a High Court

Sir Abdul Rashid 44 years, 5 months

Dr. Sheikh Abdur Rehman 43 years

Hamoodur Rahman 44 years

Muhammad Yaqub Ali 43 years, 9 months

Sheikh Anwarul Haq 42 years, 5 months

Mohammad Haleem 44 years

Muhammad Afzal Zullah 42 years

 Dr. Nasim Hassan Shah 38 years, 10 months

Ajmal Mian 44 years

Saeeduzzaman Siddiqui 42 years

Irshad Hasan Khan 44 years

Iftikhar Muhammad Chaudhry 41 years

As may be note-worthy, the late Dr. Nasim Hassan Shah was actually 38 years, 10 months at

the time of his appointment to the High Court. It may further benefit at this juncture to also

highlight the presently serving Judges of the Supreme Court, appointed as Judges of the High

Court before the age of 45:

Name Age at time of Appointment as

Judge of a High Court

Mr. Justice Mian Saqib Nisar 44 years, 4 months, 4 days

(presently the Honorable Chief

Justice of Pakistan)

Mr. Justice Asif Saeed Khosa 43 years, 5 months

(incumbent Chief Justice of Pakistan)

Naturally, history may of course provide other examples of such likewise exceptional

individuals, called upon to serve this country as the Judges of its Superior Courts, at an age

that is, notably, lesser than forty-five years; and the country, likewise, rewarding such

exceptionalism, and boasting an inclusive culture of judicial appointments to the Superior

Courts. It is this very inclusive culture, distinct to the Bar, and further guaranteed by Article
193 as originally enacted, that the author, much like his fraternal brothers and sisters (the

same being a considerable section of citizens), have the right to both preserve and promote,

under Article 28 of the Constitution.

The Office of the Advocate General

Adverting to the case of the Office of the Advocate General, the effects thereupon of Section

69(ii) of the Constitution (Eighteenth Amendment) Act, 2010, are discernible from a perusal

of Article 140(1) of the Constitution:

“140 Advocate-General for a Province.

(1) The Governor of each Province shall appoint a person,

being a person qualified to be appointed a Judge of the

High Court, to be the Advocate-General for the

Province.”

(Emphasis Supplied)

As a consequence, the concerns voiced in relation to the necessary effects of any increment to

the Constitutional Minimum Age Requirement upon the Maximum Length of Tenure, and

also the diversity of a Judge of a High Court, apply mutatis mutandis to the case of the

Advocate General.

It may further be interesting to note, in the context of the impact of Section 69(ii) of the

Constitution (Eighteenth Amendment) Act, 2010, on the Office of the Advocate General, that

the levelling up of the Minimum Age so achieved, naturally, has a restrictive effect on the
anticipated selection pool from which appointments to the constitutional post are made. This,

indubitably, also restricts the “Provincial Government’s” autonomy to appoint counsel of

their choice to such Constitutional position, which restriction must, in a society governed by

the rule of law, have reasonable justification. In such context, one cannot help but be

reminded of the case of Mr. Mustafa Ramdey, Acting Advocate General Punjab, who, but for

his age, would perhaps have been the relevant Government’s most preferential candidate for

the Constitutional office. It is indeed this very requirement of a reasonable justification that

separates an act under law from an act arbitrary and/or excessive; a justification which is

neither forthcoming in the instant case or could be reasonable (for reasons mentioned

hereinabove), even if it were.

The Legal Fraternity

That in the context of the impact of Section 69(ii) of the Constitution (Eighteenth

Amendment) Act, 2010, on several cross-sections of the legal fraternity, it may be noted that

the main cross-section may be identified as lawyers qualified in terms of experience for

appointment to the High Court, as provided in Article 193(2)(a), but not meeting the age

requirement. In such context, it may be beneficial to identify the corpus of the category so

identified. Article 193(2)(a) reads:

(a) he has for a period of, or for periods aggregating, not

less than ten years been an advocate of a High Court

(including a High Court which existed in Pakistan at

any time before the commencing day);

As may be manifest from a perusal of the above-reproduced clause, the requirement thereof,

in the case of an individual who has been in continuous practice as an Advocate of a High

Court, is only that the prospective candidate has been in such continuous practice for a period

of not less than ten years. Under the Constitution, as originally enacted, wherein the

minimum age requirement had been set at forty years, this would have entailed that a

prospective candidate, who had been in continuous practice as an Advocate of a High Court

since the age of thirty would have been best placed, or, to put it in a different manner,

provided the most preferred treatment, in the context of eligibility for such appointment,

constitutionally speaking.

One would imagine, on the presumption of reasonableness that may be attributed to the

framer of the Constitution, that the preferential treatment so granted was reasonable in the

circumstances that prevailed at the time. One must not, however, lose sight of the fact that the

Legal Practitioners and Bar Councils Act, 1973, by its Sections 26 and 27 places the

following restrictions on the enrolment of Advocates and Advocates of the High Court

respectively:

“26. Persons qualified for admission as advocates.-- Subject to

the provisions of this Act and the rules made thereunder, a

person shall be qualified to be admitted as an advocate if he

fulfils the following conditions, namely:-

(b) he has completed the age of twenty-one years;

…”
 “27. Persons qualified for admission as advocates of a High

Court.--Subject to the provisions of this Act and the rules made

thereunder, a person shall be qualified to be admitted as an

advocate of a High Court if he fulfils the following conditions,

namely:-

(a) he has practiced as an advocate, vakil or pleader

before subordinate Courts in Pakistan for a period of not

less than two years;

…”

As apparent from an appreciation of Sections 26(b) and 27(a), the practical and effective

minimum age at which an individual may be enrolled as an Advocate of the High Court, is

twenty three years. Thus, the Constitution, as originally enacted, itself, created a

classification amongst Advocates of High Courts in that, at any given time where such

appointments were to take place, those Advocates, enrolled as Advocates of the High Court at

any age between twenty three years and thirty years, who, but for only their age, would have

been qualified, in terms of experience, for appointment as Judges of the High Court, were

denied the opportunity for eligibility for such appointment. It is submitted, with the utmost

respect and humility, that the effect of the classification so created, on the basis of age, was to

treat the members of the classification as less capable to perform the duties of a Judge of the

High Courts for no good reason but the member’s age, and to swiftly exclude them from

consideration for appointment.

Under the Constitution, as it presently stands, however, wherein the minimum age

requirement has been set at forty five years, the situation has become even more arbitrary.
The amendments effected now entail that a prospective candidate, who has been in

continuous practice as an Advocate of a High Court since the age of thirty five would now be

best placed, or, to put it in a different manner, provided the most preferred treatment,

constitutionally speaking.

If the practical and effective minimum age at which an individual may be enrolled as an

Advocate of the High Court, noted earlier as twenty three years, remains a constant, then the

corpus of the classification, noted hereinabove, invariably expands to include those

Advocates, enrolled as Advocates of the High Court at any age between twenty three years

and thirty five years, who, but for only their age, would have been eligible, in terms of

experience, for appointment as Judges of the High Court. There being no reason or

justification for the denial of the opportunity mentioned, with the exception of an archaic

stereotype, and the restrictions being patently contrary to, inter alia, Articles 4, 9, 14 and 25

of the Constitution are liable to be declared as such.

Pakistani Society

And lastly, the most seminal case of Pakistani society as a whole.

It has been noted earlier that, principally, if a workable democracy must, invariably, be

pillared in an unwavering commitment to rule of law and due process, then an independent

judiciary is a notion fundamental to the very preservation of democratic society. If that were

so, then any iteration of the former would be detrimental to the latter. When that latter is the

very preservation of democratic society, then, with respect, such iteration amounts to a fraud

upon the “will of the people of Pakistan”, which is to establish, in terms of the Preamble of
the Constitution, an order “wherein the principles of democracy, freedom, equality, tolerance

and social justice, as enunciated by Islam, shall be fully observed” and “wherein the

independence of the judiciary shall be fully secured”.

Of course, it may be recalled, that the enhancement of the Minimum Age Requirement so

sought, to the extent that it erodes the Maximum Potential Length of Tenure of a Judge of a

Superior Court and, further, fundamentally impairs the perceived quality of judicial power,

exercised by such average Members of the Superior Court and the legitimacy thereof, was

noted, in the circumstances, to be an infringement of the right of the citizenry to have free,

fair and equal access to independent and impartial Courts, thus violating the guarantees

contained within Articles 4, 9 and 25 of the Constitution of Pakistan, 1973. That legal

technicality aside, if such erosion of the Maximum Potential Length of Tenure “may”

increase the susceptibility and vulnerability of those affected to the influence of factions who

may affect their future employment prospects, then it is often found that such influence is not

too uncommonly exercised in disputes involving less advantaged (or influential) sections of

the society. If “access to justice” is the paramount consideration, then, in the circumstances, it

would not be difficult to see how shorter tenures would be detrimental to such ideal, or would

at least be perceived as so. On the flipside, it is also quite obvious how longer tenures would

be conducive to attainment of the goal sought to be achieved.

Likewise, one can very well understand the response in the United Kingdom to the oft-

resorted objection of breeding “male, white, conservative, ox-bridge” judges. In a society like

Pakistan where the common magistrate or session judge is both the tribunal of law and fact in

criminal proceedings, it becomes all the more important that justice is not only done but seen

to be done. Given the choice of trial by a peer or otherwise, logic would normally dictate
preference of the former option. Of course, a diverse judiciary would also, arguably, be

perhaps more in tune with the body of citizens it is called upon to adjudicate upon, if not

reflective thereof; and seen as so. This too, in the circumstances, would promote “access to

justice” for the general citizenry, whereas the contra would be erosive thereof.

Conclusion

It has been sought to be demonstrated that, in a sense, the Constitution only envisions

levelling down of the Minimum Age Requirement, set in Article 193 of the Constitution, for a

Judge of a High Court. It has been argued that the levelling up of the Minimum Age so

achieved by Section 69(ii) of the Constitution (Eighteenth Amendment) Act, 2010, frustrates

the mandate of the Constitution, distorts and erodes its salient features and infringes the rights

of various cross-sections of Pakistani society, if not it as a whole. Even conventional logic

dictates that with improvement in education the criteria for Appointment as a Judge of a High

Court should relax, so as to accommodate an ever younger Bar (the humble authors equally

humble professional partner was initially denied admission as an Advocate, on account of

being less than twenty one, despite having already been Called to the Bar in England &

Wales).

It is indeed “not” just a matter of five years, but an arguably impermissible amendment to the

Constitution, and a practice which if permitted would know no end. To quote an

apprehension expressed by the fictitious British Defense Analyst in the sitcom “Yes, Prime

Minister”, “they’ll use salami tactics.” Whilst the reference was in relation to Soviet

annexation of Europe “slice by slice”, the metaphor seemed oddly appropriate, considering

the legislative history so painfully highlighted hereinabove in relation to the erosion of the
Maximum Potential Length of Tenure of a Judge of a High Court, first to twenty from

twenty-two, and now presently to seventeen.

In conclusion, it has been noted how the practice of non-reliance upon Article 177(2)(b) of

the Constitution, for appointment to the Supreme Court as a Judge thereof has effectively

rendered nugatory the referenced provision and frustrated the ethos and vision of the

Constitution vis-à-vis the Supreme Court. It is hoped that such practice is parted from, and

the Supreme Court, much like the citizens it serves, benefits from the unique experiences and

expertise of senior Advocates of the Bar, thoroughly meriting appointment to such

Constitutional bounty, so jealously guarded to date; even if such guarding and non-reliance is

motivated solely for the benefit of the Institution.