Different constitutions regulate the retirement age of the judges of superior courts, including the Constitutional Court or the Supreme Court in different ways.
In the United States, for instance, the Constitution provides that judges to the Supreme Court are appointed for life. This has led to situations where stroke-stricken judges, such as the legendary liberal and erratic judge William O. Douglas, barely able to move but still in control of his senses, remained on the Bench, lest he be substituted with a more conservative judge by an administration of a political hue different from the one that appointed him.
In the UK, the retirement age of judges is fixed by statute at 70, with discretion granted to the Lord Chancellor to extend the age for individual judges up to 75.
In Australia, following a referendum in 1977, a retirement age was introduced and fixed at 70 years. This is the generally recognised retirement age in several countries, including Brazil, Canada, and South Africa. In Cyprus, the retirement age of Supreme Court judges is fixed at 68.
In the original Independence Constitution of Malta, the mandatory retirement age for judges was 65 and that of magistrates, as well as the Attorney General, was capped at 60. In 2002, the Constitution was amended so that even magistrates and the Attorney General would only retire at age 65.
Mysteriously and almost stealthily, the amendment to raise the judiciary’s retirement age was dropped by the government
With the increase in average life expectancy in Malta from 68.80 years in 1964 to 80.75 in 2012, and with Malta occupying pole position in the EU with regards to healthy life expectancy, it was only natural that such arbitrary capping for retirement of members of the Bench should be revised.
Perhaps inspired by the Cyprus Constitution, the Minister of Justice proposed a constitutional amendment to Bill No. 145 presented to the House on February 15, 2016, whereby, in virtue of clauses 7 and 8, respectively, the retirement age of judges and magistrates was to be increased from 65 to 68 years of age.
The Bill included other more important provisions, including a change in the way judges and magistrates are nominated by the Prime Minister, who now must consult, prior to appointment, a Judicial Appointments Committee composed of the Chief Justice, Attorney General, president of the Chamber of Advocates, Auditor General and Ombudsman. Thanks to an Opposition proposal, if the Prime Minister disagrees with the advice given to him by the committee, he must make a public statement on the matter in Parliament.
The provision raising the retirement age to 68 was dwarfed by other significant amendments to Malta’s supreme law, therefore, but this did not lessen its significance and worth.
The Opposition was also in agreement with raising the retirement age, thus guaranteeing the two-thirds majority of all members of the House required for the amendment to be approved.
In fact, in a private member’s Bill (No. 142) that Opposition MP Jason Azzopardi presented to the House on February 15, 2016, raising the retirement age to 68 years was expressly included.
And then, mysteriously and almost stealthily, the amendment was dropped by the government at committee stage. The Minister of Justice just withdrew it.
No explanation was given. He made no remarks on such an important decision, no justification as to why an amendment, which had the unanimous approval of the House, was suddenly withdrawn by the government which had proposed it.
Assuming this provision had been agreed to with the Chief Justice and the judiciary, the deletion of an important provision is even more serious.
As of now, no explanation has been forthcoming. It does not even cross my mind that the move for withdrawal was political in nature or that the government was not happy with past appointments of certain members of the Bench and does not want to extend their term in office.
So what was the purpose of such a change of heart? Was it a financial consideration? I do not think so. Salaries for a fixed number of judges remain the same so long as the complement is not increased.
Mystery engulfs this unilateral move. Opposition MP Francis Zammit Dimech – as usual alert and enriched by 30 years’ experience in the House – realised what was about to happen and stated that the Opposition was in favour of retaining raising the retirement age. But, of course, he had no control over the government’s right to withdraw its own proposal.
Indeed, this was an amendment that never was!
Tonio Borg is a lecturer in public law and a former deputy prime minister and European Commissioner.