Extending the judicial mandate

Some months ago there was discussion regarding the term of office of judges and magistrates to the effect that the term of office should be extended beyond 65 to 75. These suggestions focused on the waste of human resources in a problematic area. This is but one aspect of the problem and there are several fundamental issues that need to be addressed. Clearly, pay and pensions need to be seriously increased. This must be made in the interests of our democracy. Independence of the judiciary is critical to all of us.

If this is done, the issue of securing longer terms for judges can be put in the proper perspective. I am not in favour of extending the term of judges and magistrates beyond the current age limits for several reasons but this is not why I write. Allow me to propose an alternative, which will protect the independence of the judiciary in a more robust manner and meet the goal of not losing potentially important and valid contributions by capable members of the judiciary once they reach 65 years of age. At the same time it gives these individuals scope for continuing personal fulfillment without affecting the integrity of the office post-retirement.

The broader discussion of whether having a judge retire at 65 impinges on his or her independence is important. It is self evident that if a judge needs to cater for his or her income from 65 to 75 it is easy to speculate that his/her independence is prejudiced. A decent income throughout the years of service and a decent pension should address that concern. However, to cater for those who have the gift of good health and a clear mind, what are we to do, just disregard the resource and waste it?

Some find public office a solution but one can objectively criticise the granting by the government of posts to the judiciary. That could be interpreted as an award. We should not let this happen for many reasons, none of which relate to the inability of former judges or magistrates to carry out the functions.

We should introduce a system that would entitle a retiring member of the judiciary to continue working until 75. The right to continue to work would relate not to the courts but to other statutorily designated posts of a judicial or quasi-judicial nature, of which we have many. From simple reference to current experience we can refer to the many administrative tribunals, now intelligently grouped into a new Administrative Court, panels relating to discrimination, corruption, injustices and ombudsmen. We can also catch within this exercise the court of voluntary jurisdiction into a more specialised court on successions of estates and on administrations and other fiduciary offices, particularly now that the practice of trusts and foundations is growing wider. Included in this should be the seats on European courts.

This is creating negative perceptions that need to be seriously avoided.

The posts should be designated in a law issued in terms of the Constitution with agreement of two-thirds of the House of Representatives and designated posts can only be added to or reduced with the same majority. The posts will be protected by the same rules on independence and tenure of office as at present.

These posts would be available to be filled, going forward, by all judges and/or magistrates who retire. The government would have no say on who fills them, except when there are no available retired members of the judiciary or no positive recommendation by the judicial committee. This will be determined by a judicial committee made up of the five most senior serving judges and the four most senior serving magistrates. It will be the arbiter on whether a judge/magistrate over 65, who wishes to continue to work, is of sufficient health. The committee would be able to reassign posts and even invite a retired member of the judiciary to vacate a post if not carrying out the role due to health or other reasons. A retired member of the judiciary would receive full pay until s/he is 75 and if s/he actually retires or cannot work then his/her pension will start being paid at two-thirds of the then applicable wage for a serving judge/magistrate. Until pensions are suitably adjusted they will continue to receive full wages until they are 75 even if they do not work. This system can work immediately even if wages and pensions are not increased and it will go a long way in solving the constitutional concerns expressed above. Of course, it will work much better when we bite the bullet and pay more appropriate wages. It need hardly be said that, like the rest of us, judges and magistrates need to espouse the critical necessity of continuing professional education for as long as they work because in a world of fast changing laws, the growing wisdom of a 65-year-old is not a guarantee to see him/her through the challenges of new and complex legislation in many areas of practice.

The author is a lawyer by profession.