Remarks by a judge who is being obliged to retire at the age of 65 years under the terms of his employment contract in Malta but who will continue to serve on the International Criminal Tribunal for the Former Yugoslavia for several years to come have brought to the fore again the issue of when it is appropriate for judges to retire.
The retiring judge questioned whether it was in the general interest that judges should be forced to retire just at the point when they were in their prime. He suggested that the criterion should be their physical fitness to serve, not some arbitrary fixed age limit.
The government, which has been at the receiving end of such complaints from the judiciary for some time – including from the Chief Justice himself – was quick to respond. It declared unequivocally it had no intention of raising the retirement age of judges or the number of years of experience needed before being appointed to the Bench, pointing out that the retirement age had been raised from 60 to 65 years as recently as 2007.
Should the government have been so quick to try to shut off discussion on an issue of such importance not only for the administration of justice but also, more generally, for the whole debate about the affordability of the future state pensions and retirement ages for the workforce as a whole?
Many advanced Western judiciaries serve until the age of 70, 75 or even 80 years. Considerable merit is seen in allowing people, the very essence of whose professional value is good judgement and wisdom, to continue to serve. It is a fact that these qualities increase with age. By allowing judges to retire later, therefore, the country benefits and confidence in the system of justice is concomitantly increased. Clearly, safeguards to avoid being saddled with judges who are medically incapable would need to be instituted to ensure standards are maintained.
On the other hand, allowing judges to serve beyond the age of 65 years would block promotion chances to the Bench and restrict the regular injection of fresh blood which any institution requires if it is to stay healthy and vibrant. The need for ensuring attractive career structures is an important consideration if the judiciary is to attract people of merit to the Bench.
It is, as always, a matter of striking the right balance. But, at first blush, it would seem that the need to capitalise on the wisdom which comes with age should trump career structure considerations in this case.
As to retirement ages for judges in the wider context of pension reform, it is now clearly understood that unless people as they live longer also stay longer in employment, either the affordability and adequacy of pensions are likely to suffer or an unsustainable escalation in pension expenditure may occur. Malta is a classic case of this phenomenon. It has been roundly warned by Brussels that it needs to take urgent action to mitigate the costs of its pension and social security benefits.
The case of the judges is simply a microcosm of the pension affordability and retirement age time-bomb. All the arguments point in the direction of increased retirement ages for judges – and everybody else.