Let justice be done for justices

There has been a great deal of talk recently about raising the judges’ retirement age and, on June 27, The Sunday Times dedicated its entire editorial to this interesting subject as also did The Times on Tuesday. I can perceive a wide consensus in favour of this proposition and I would like to state at the very outset that I too support a reasonable rise.

A feature on the front page of The Times last Friday carried the dampening news that a spokes­man for the Ministry of Justice stated that the government has no intention of raising the retirement age for judges. He is also quoted as saying (and this is actually between inverted commas) that “the retirement age for members of the judiciary was revised from 60 to 65 in 2007”. As this is reported to have been said in the context of raising the retirement age for judges, it must be the fruit of either a misunderstanding or an oversight. Indeed, Act XXI of 2007 in no way altered the retirement age of judges. It only brought that of magistrates to the same level as that of judges, and this is in itself a good measure too.

But the fact remains that the retirement age for judges has not been changed for too many years. Nobody in his right mind would today advocate the old English system (since abandoned) of no age-limit at all, with bewigged senior (or rather senile) judges sleeping soundly on the Bench no matter how hard that bench was! Everybody will agree that there must be a fixed retirement age for judges, if for nothing else as a constitutional safeguard. But it must be reasonable in the circumstances of a particular period in time.

At the time of the promulgation of the Constitution, which I had the privilege of drafting, the retirement age was already 65. This is, in fact, enshrined in the Constitution itself because the notion of a fixed retirement age for judges is one of the traditional safeguards for their independence. It has therefore a constitutional connotation, the reason being that, otherwise, the Executive could make one judge retire at a particular age and another at a different one.

At the time of the Constitution’s promulgation in 1964, the 65-year age-limit was not only existing law, the adequacy of which had to my knowledge never been questioned, but was also from the comparative law viewpoint “normal in the more recent Constitutions of the new Commonwealth” (see my constitutional text-book, second edition, page 115).

Times, however, change, and from the practical viewpoint a significant new factor has since emerged. As is well known, the expectancy of life is now appreciably higher and medical science has so advanced that people enjoy reasonably good health for far longer. Indeed, there can be little doubt that, as things stand today, making judges retire at the age of 65, when, having accumulated a wealth of judicial wisdom and practical experience, they are normally at their best, is a sheer waste of talent. With the accumulated knowledge of the intricacies of the law and past decided cases they are the depositaries of the collective wisdom of scores if not hundreds of their predecessors in office. This clearly should not be wasted by imposing what, at a given point in time, may be considered as a too low retirement age.

Besides, as retiring judges must of necessity be replaced, this turns out to be also a waste of public funds in the sense that, together with a salaried replacement, one has also an added pensioner. But, then, I am the first to accept that with a judge’s pension being the miserable pittance (I refuse to glorify peanuts) that it is, this last consideration loses much of its cogency.

Frankly, I fail to see any really valid objection to the raising of the age-limit for judges’ retirement. Differentiation from other office-holders may possibly be invoked. But in past history a higher retirement age for judges has always been the case and to my knowledge no grievances have ever been voiced on this score. Moreover, this is not peculiar to our country alone.

Mention has also been made of giving lawyers aspiring to the judgeship a chance. But when their time comes they would also be able to enjoy a longer term of office (if I may be pardoned for referring to enjoyment in this context, as a judge’s life is hardly a bed of roses).

I do hope I have made a good case for a reasonable rise in the judges’ retirement age. But, while on the subject of the judiciary, there is still one point I should like to mention and it brings me back to pensions.

On the matter of pensions in general, the Constitution has providently sought to provide for the effective protection of pension rights but, of course, could not and did not provide for their enhancement from time to time, this being obviously a matter for Parliament alone.

As has been said, the miserable pension judges enjoy (again, the word is improperly used) may well be such as to discourage bright and well-established lawyers from accepting a judgeship.

If I remember correctly, the point was also publicly made by my good friend, the sitting Chief Justice. Perhaps parliamentarians, who at one time were quick to indulge in a Cicero pro domo sua exercise in this matter (which I hasten to say I don’t begrudge them), may find the time to take this point up at some date that is not too distant in the future.

Prof. Cremona is a former Chief Justice and a former vice-president of the European Court of Human Rights.