There exists only two public offices that require the consensus of both sides of the House to be filled. These are the office of the Auditor General and the office of the Ombudsman. The term of office of Joe Sammut as Ombudsman had expired for quite some time before, finally, an agreement was reached on the appointment of former Chief Justice Joe Said Pullicino to succeed him. In fact, he was elected to this office unanimously in Parliament on December 12.

I do not propose to dwell on the workings of the Ombudsman per se but I would like to make certain reflections on the judiciary itself.

According to our Constitution, judges must retire from the bench on attaining the age of 65 while our magistrates must retire at 60. Experience has shown us, however, that hardly a single member of the judiciary actually retires. In fact, it has become customary for the government to appoint retired members of the judiciary to chair important tribunals and boards or to spearhead major government commissions. The reason for this is that at 65 retired members of the judiciary still prove to be an invaluable source of human resources and the government does well to tap on their great experience at holding high office. Dr Said Pullicino himself, on attaining the age of retirement, had been chairing the Malta Broadcasting Authority and will now occupy the very important position of Ombudsman.

The question that arises however is whether it is time to reconsider the retirement age of our judiciary and what I have to say in this regard is to be deemed as strictly being my personal opinion as a lawyer.

First of all it must be pointed out in this regard that the Constitution does cater for acting judges and magistrates. It is not the first time that the government deemed fit to extend the term of office of a particular judge after the latter would have attained retirement age. I remember, for example, how after attaining the age of 65, Mr Justice Censu Scerri had been appointed to act as judge year after year until he ended up dying in office.

I also remember, for example, how former Attorney General and later Mr Justice Victor Borg Costanzi was appointed as acting judge for a five-year term after having attained the age of 65.

This, to me, is not the ideal situation because an acting judge will never enjoy the full guarantees of that particular office guaranteed by the Constitution. On the other hand, we have to appreciate that it is often the case that senior lawyers nearing the age of 60 are approached to be elevated to the bench. On account of this many of our top jurists will end up members of the judiciary for a limited amount of years when, undoubtedly, they could give much more.

Elsewhere the retirement age of members of the judiciary is much higher. In the United Kingdom, for example, judges used to be appointed for life. I remember, for example, Lord Denning, who occupied the post of Lord Master of the Rolls, which office equals that of Chief Justice in civil matters, retiring at the grand old age of 87 while recently one of the judges of the US Supreme Court called it a day at the age of 90. This approach, however, is to say the least, extreme. In fact, in the UK today judges must retire on attaining the age of 75. Similarly in Italy members of the judiciary retire at the age of 70.

With regard to the two major pan-European courts, the European Court of Human Rights and the European Court of Justice, we see that while in the former the mandatory retirement age is 70 in the latter it is 75.

Therefore, we see that, generally, members of the judiciary are allowed to hang on to office for a few more years than is the practice in our country.

The subject of extending the retirement age of our members of the judiciary, in an informal matter, has occasionally cropped up even in Parliament and there have been arguments in favour and against from both sides of the political spectrum. Some argue that it does not make sense to extend the retiring age of the members of our judiciary as these cannot be removed from office and that some might not be performing as well as they ought. Others have argued, myself included, that the more experience a particular judge gains in office, as a rule, the more he will deliver. After all, our retired judges are still being enticed into public office many years after their retirement.

Lately, our Chief Justice, as vice president of the Commission for the Administration of Justice, suggested that we are in earnest need of more judges and that it would be a wise move to appoint judges specifically to deal with a back-log of old cases. Perhaps a solution would be to give the opportunity to our senior members of the bench to hold on to their judicial post for a few more years, say till attaining the age of 70, even if on condition they would assume the work of tackling the back-log of older cases and perhaps of tackling the work before the Court of Voluntary Jurisdiction.

With regard to magistrates, I also feel that a mandatory retirement age of 60 is far too low. This is especially so when one considers a number of factors. There is no age limit imposed on the chairmen of the small claims tribunals and the commissioners of justice. These perform a duty not too far removed from that of our ordinary magistrates even though their competence and jurisdiction is far less. Secondly, the mandatory retirement age of 60 precludes the more senior members of the legal professions from taking the plunge and accepting to be appointed magistrates.

Finally, it must be pointed out that there are a number of senior members of the judiciary who are steadily approaching retirement age, who are of a certain calibre and who are contributing in no small way to more efficiency and excellence in the courts. We need these people and it is a pity to see them go within the next couple of years.

There is much to be said in this respect and I am certainly not stating categorically whether it is ripe or otherwise to increase the retirement age of our judges but, on the other hand, surely the time is right for the issue to be debated in a more formal manner.

The appointment of Dr Said Pullicino to the office of Ombudsman has undoubtedly inspired me to make these reflections.

Dr Herrera is a Labour member of Parliament.

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