LAHORE, April 3: The Lahore High Court on Thursday proposed that the fate of a three-year increase in the age of superannuation for superior court judges under the LFO, should be decided by the parliament.

Justice Tassadaq Hussain Jilani, the senior member of a division bench hearing an intra-court appeal against the LFO, observed that an increase in the age of superannuation concerned the whole judiciary and had to be considered in its entirety. “Let the parliament take up and decide this issue accordingly,” he observed in response to submissions of the petitioner.

The petitioner, A.K. Dogar, said that the arguments of the Attorney-General of Pakistan in which he had defended the extension quite emphatically, had raised certain questions about the future of judiciary in Pakistan. He said he would now consult the Pakistan Lawyers Forum, on behalf of which he had filed the petition, as to whether he should withdraw the petition or rebut the State’s arguments.

The petitioner quoted the Supreme Court as having used the term of “judicial paralysis” in the Asif Ali Zardari Case for circumstances in which judges worked for their own interests. “The present bench might be suffering from judicial paralysis in the context of this three-year extension of its service period, and I might have to withdraw the petition,” he submitted.

Justice Jilani took serious notice of the argument saying that the counsel should honour the decorum of the court, whereupon the petitioner apologised.

The court observed that he should not withdraw the petition since the AG had appeared in the court thrice to complete his arguments while the petitioner had also completed his. “The whole exercise would go waste in case the petition is withdrawn. Yet the choice is yours as the case is being adjourned for Friday morning to provide you with an opportunity to rebut the AG’s arguments,” the court observed while rising up.

Earlier, AG Makhdoom Ali Khan argued that Gen Musharraf’s assumption of the office of president for five years under Article 41(7) of the 1973 Constitution, parallel to his office of COAS, could not be called into question by the court. This LFO amendment is not violative of the Constitution and its salient features have been identified by the SC in Zafar Ali Shah Case, he submitted.

According to the AG, there was no substantive constitutional provision under which the court could prevent a COAS from holding the president’s office, since President Pervez Musharraf had derived his authority to amend the Constitution through SC’s judgment in the Zafar Ali Shah Case. Even if Article 41(7) is presumed to be unconstitutional, it enjoys the same sanctity as any other constitutional provision after becoming part of the Constitutional through the LFO, the AG contended.

Mr Makhdoom claimed that the LFO had become part of the Constitution, and only a two-third majority of the parliament could strike it down under Article 239. He argued that the court did not have the power to strike it down or even review it.

While touching upon the LFO provision regarding a three-year increase in the superannuation age of superior courts judges, the AG was of the view that whereas a reduction in the age of the judges would have violated the independence of judiciary, the enhancement did not. He cited the advanced retirement age of judges in various countries, saying that the sitting chief justice of the US was 78 years of age because judges in the US were given life-time appointments.

The AG submitted that the Fifth Amendment, introduced in 1976 and struck down by Gen Ziaul Haq’s regime later on, violated the independence of judiciary by making it mandatory on CJs to vacate the office on completion of the specified tenure even if they did not reach the age of superannuation. On the other hand, the amendment required of those who reached the superannuation age in the meanwhile to stay in their offices and complete the tenure, which was five years in the case of CJP and four in case of a high court CJ,

Thus former LHC CJ Sardar Mohammad Iqbal had to step down from his office before reaching the retirement age whereas former CJP Justice Yaqoob Ali stayed in the office even after reaching the age of superannuation, the AG recalled.

He further argued that the age of superannuation for SC and high courts judges was 65 and 60 years respectively in the constitutions of 1956 and 1962, but for high court judges it was enhanced to 62 years by Gen Yahya Khan under the High Courts Judges Retiring Age Order 1969. “The retirement age was enhanced by the then Chief Martial Law Administrator and not by the 1973 Constitution.”

About Article 58(2)(b), the AG submitted that the SC had described it as a safety valve against military intervention and breakdown of constitutional machinery. “The court has gathered the impression from your submissions that this Article is not violative of the parliamentary features of the Constitution,” observed Justice Jilani.

Lastly, the AG termed the National Security Council a consultative body, saying that it was not superior to the parliament. He asked the court to draw a visible line of distinction between ground realities and abstract concepts. “The courts, while deciding statutory matters, should take a favourable stance on the basis of the constitutionality of statutes.”