The 114th Constitution Amendment Bill has been tabled in the Lok Sabha (the Indian parliament). The bill seeks to enhance the retirement age of judges, proposing that the retirement age of high court judges be increased from 62 to 65 years, in keeping with global practices. Public opinion in India is also seeking to enhance the retirement age of the Indian Supreme Court judges from 65 years to 70 years.
A cursory glance across other Commonwealth jurisdictions shows that the retirement ages of the superior judiciary are far more rational than that prevalent in the subcontinent. The retirement age of Supreme Court judges of the United Kingdom and Canada is 75 years, while that of judges of the apex courts of Australia, Ireland and South Africa is 70 years.
The United States of America is unique in this regard as there is no retirement age for judges of the Supreme Court and they can serve for life, unless they choose to retire earlier.
In Pakistan, judges of the high court retire at the age of 62 years and the judges of the Supreme Court retire at the age of 65 years. This retirement age was raised to 65 years and 68 years, for the high courts and Supreme Court respectively for a short period during the last decade but was reverted subsequently.
The lowering of the retirement age of judges was subjected to judicial review recently. Hungary had reduced the retirement age of its judges from 70 years to 62 years. This action was challenged before the European Court of Justice in the case of Commission v Hungary. The court held that the lowering of the retirement age of judges amounted to discrimination on the grounds of age.
According to the definition, mandatory retirement is the age at which persons who hold certain jobs or offices are required by industry custom or by law to leave their employment, or retire. Typically, mandatory retirement is justified by the argument that certain occupations are either too dangerous (military) or require high levels of physical and mental skill (air traffic controllers, airline pilots) and, therefore, the employees should be of a certain age. Under no circumstances can the retirement age limit determined under such criteria be applied to judges.
It is universally accepted that a judge only begins to acquire the requisite skill and expertise once he is elevated to the bench. It takes a few years for the lawyer to evolve into a judge. So unlike military personnel, pilots and air traffic controllers, the time a qualified judge serves on the bench has a direct and positive correlation with the quality of justice dispensed. The years on the bench mature a judge and retiring him/her at the age of 62 years or 65 years amounts to retiring an athlete at the peak of his/her fitness.
Our present system is forcing the retirement of the wisest, most experienced and, in many cases, most productive, most reliable, and even healthiest judges.
I do not subscribe to the theory that vacancies must be created at the top judicial levels to enable new entrants to rise. It would be absurd to suggest that our most efficient judges be retired at an arbitrarily determined age only to elevate new people to the bench, for them also to retire at the peak of their performance. The knowledge and wisdom that a judge acquires on the bench is a national resource and it makes sense to continue to harvest it for as long as possible.
The present retirement age of superior court judges is also a deterrent for capable and successful lawyers from accepting elevation to the bench. Any candidate for elevation to the bench would consider his age factor when contemplating elevation, especially in view of the law that a retired superior court judge cannot appear before any court within the jurisdiction of the court of which he was a judge. So a retired Supreme Court judge is barred from appearing before any court in Pakistan post retirement.
The retirement age of high court judges is even lower. A fifty-plus year old luminary of the bar would not accept elevation as he knows that a few years later he will retire and then be unable to practice in any court within the jurisdiction of that high court. This low retirement age is preventing the best and the brightest in the legal field from even considering elevation to the bench.
The low retirement age is far more detrimental for judges of the subordinate judiciary. These judges are considered for appointment to the high courts once they have risen to the top of the mile long seniority list of the subordinate judiciary.
Consequently, the appointees from the subordinate judiciary are generally older than their counterparts who had been practicing lawyers till their elevation. So a person who has been trained in the subordinate judiciary for 20 to 25 years is only given a few years in the superior courts due to the low retirement age.
Life tenure or longer tenures for the superior judiciary would definitely improve the independence of the judiciary. A judge with life tenure is unlikely to be susceptible to any kind of pressure from powerful interest groups. Furthermore, longer tenures would also preclude a judge from having to worry about making ends meet after having attained the age of superannuation.
The Constitution Committee of the House of Lords in the United Kingdom has also deprecated a low mandatory retirement age for the superior judiciary. According to the committee, a set retirement age is undoubtedly a blunt tool by which to assess whether someone is no longer fully capable of performing their job. The committee observed that there is less value to be gained from appointing someone to the superior courts that only has a couple of years left to serve. The committee recommended that it is in the public interest that senior judges of proven judicial quality are retained in the superior courts where experience and knowledge is at a premium in the development of the law.
The European Court of Justice’s decision in the Hungary case is not the only example where the mandatory retirement age of judges has come under judicial scrutiny. Legal proceedings are afoot in the United Kingdom and elsewhere whereby the mandatory retirement of judges has been challenged as being too low and counterproductive. Initiation of similar proceedings in Pakistan is quite plausible as there is cogent international juridical precedent to support such a challenge. However, I feel that it would be better if this positive change was brought about by the people through parliament.
In 1977, Australia conducted a national referendum upon the issue of the retirement age of judges. Pennsylvania (United States) is also considering a referendum along similar lines. If Pakistan were to hold a referendum upon this issue today, I am sure that the results would cement the argument being propagated by this article.
Ideally, it would be of great benefit to the nation if the judges of the apex court were given life tenures, as is the case in the United States Supreme Court. However, pending a national debate upon this issue or a national referendum as the case may be, it would suffice if the retirement age of judges is presently increased to equal that prevalent in the Commonwealth jurisdictions.
The Pakistan Law Commission had recommended an increase in the retirement age of judges as far back as 1997. The present harmony across the aisles of parliament provides a perfect opportunity for a constitutional amendment to be passed rationalising the retirement age of judges.What a befitting grand finale it would be for the first truly democratic parliament completing its full term in Pakistan to enhance the retirement age of judges prior to completion of its tenure on March 16, 2013.
The writer is barrister at law.]]
Agha Faisal, "The age of judges," The News. 2013-01-16.
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