Are mandatory retirement ages for senior judges discriminatory? And are we pushing out our finest legal minds just as they hit their peaks of knowledge? Our regular columnist for sister publication China Business Law Journal, Andrew Godwin, explores the issue from an Asian perspective.
Retirement from work, or full-time work, is something that happens to everyone. For some people, retirement from the work that constitutes their main career in life is mandatory once they reach a certain age.
This is the case with judges in many jurisdictions. But what are the policy reasons for and against the imposition of a mandatory retirement age on judges? And how are judges measured for retirement throughout Asia?
These questions are becoming more relevant as a result of advances in medical technology, the consequential increase in longevity among older people, and the importance of reducing or eliminating various forms of discrimination (including discrimination on the basis of age).
Pros and cons
There are many policy reasons that have traditionally been used to support a mandatory retirement age for judges. As is often the case with policy, however, there are many counter arguments that should be taken into account in determining whether the current policy settings are correct.
Perhaps the most common reason in support of a mandatory retirement age for judges is that the mental capacity of people declines over time and, accordingly, judges should be required to retire before they reach that point.
In reality, however, whether a judge experiences a decline in mental capacity and, if so, the age at which it occurs are factors that depend on the individual person. It appears arbitrary to treat all judges in the same way.
In any event, the experience of courts that impose no mandatory retirement age on judges, such as the Supreme Court of the US, might suggest that this reason need not apply.
Another reason is that the older judges become, the more likely it is that they will become unfamiliar with, or disconnected from, contemporary values in society. Although this might appear to be persuasive as a matter of logic, there are several weaknesses with this argument.
First, the core obligation of judges is to apply the law and legal principles in adjudicating a dispute that comes before them. Although contemporary values may be relevant in assessing the facts of a case, there is no reason why older judges cannot inform themselves of contemporary values (to the extent that contemporary values are relevant) and manage any inherent biases.
Second, the same reality arises in respect of this argument as it does in respect of the first one, namely, if there is a genuine concern that judges may become disconnected from contemporary values, the age at which this concern arises will depend on the individual person. Factors such as a judge’s background and life experience are likely to be more relevant in this context than the judge’s age.
A third reason that is sometimes raised in support of a mandatory retirement age is that it is good for older judges to retire in order to make way for younger judges who have new ideas and greater enthusiasm. There are, however, two weaknesses with this argument.
First, experience suggests that judges reach their career peak in terms of their judging skills after 20 or 30 years of experience on the bench. This is why the average age of appellate judges in many jurisdictions is higher than the average age of trial judges. It appears anomalous – and a waste of judicial resources – to require judges to retire just after they have reached their career peak.
Second, in reality the courts in many jurisdictions suffer from a lack of experienced judges. It is for this reason that courts in some jurisdictions allow judges who have retired as full-time judges to continue to serve as part-time or “reserve” judges. In other words, the problem is not that there are too few opportunities for younger judges, it is that there are too few experienced judges to meet demand.
Finally, it is relevant to note that in other workplaces, mandatory retirement ages have been removed to comply with anti-discrimination laws. If age discrimination is not acceptable in some workplaces, it is relevant to ask why it should be applied in the case of judges.
Around Asia
In India, the past two decades or so have seen a growing debate about whether the retirement age should be increased. The retirement age for judges of the trial courts, high courts and the Supreme Court are 60, 62 and 65, respectively.
In September 2022, bar bodies led by the Bar Council of India passed a unanimous resolution calling for the constitution to be amended to increase the retirement age of high court judges from 62 to 65, and to increase the retirement age of judges of the Supreme Court from 65 to 67.
Various reasons are commonly provided in support of an increase in the retirement age of judges in India. These include the low number of judges relative to the population, the higher retirement ages in other jurisdictions, the benefits of retaining the experience of older judges, and the desirability of curbing the tendency of retired judges to pursue other positions.
In Hong Kong, following a lengthy debate, the mandatory retirement age was increased for certain judges. An amendment ordinance that came into effect in December 2019 extended the normal retirement ages of judges at the High Court and above, as well as magistrates, by five years.
As a result, the normal retirement age for judges of the Court of Final Appeal, the Court of Appeal and the Court of First Instance of the High Court was extended from 65 to 70, and the normal retirement age for members of the Lands Tribunal, magistrates and other judicial officers at the magistrate level was extended from 60 to 65. The normal retirement age of district judges was maintained at 65.
According to a Hong Kong government statement on 6 December 2019, this change was made “to enable the judiciary to sustain its judicial manpower across different levels of court, which is crucial to the efficient and effective operation of the judiciary”.
In addition, the government stated: “The extension of the normal retirement ages for Judges at the Court of First Instance level and above, from 65 to 70, is expected to enable the retention of experienced senior judges and attract experienced and quality private practitioners to join the bench.
Interestingly, the reforms in Hong Kong were motivated by a perceived need to retain experienced senior judges and to attract quality practitioners to become judges. This reflects concerns about the lack of experienced judges to meet demand, as outlined above.
In mainland China, no separate provisions have been issued to date in relation to the retirement of judges. Instead, judges are subject to the same requirements that apply to civil servants. Under provisions issued in 2006, the mandatory retirement age for most judges is 60 years for men and 55 years for women.
The position is mixed in other jurisdictions. In Singapore, judges of the Supreme Court of Singapore are subject to a mandatory retirement age of 65. By contrast, a retirement age of 70 applies to judges of the Supreme Court of Japan and judges at the federal level in Australia, including judges of the High Court of Australia and judges of the Federal Court of Australia.
Given the inconsistencies between jurisdictions, and the counter arguments against mandatory retirement ages, including anti-discrimination laws, it is relevant to ask: Should the mandatory retirement age for judges be increased or abolished?
ANDREW GODWIN is currently a member of an Asian Development Bank team that is advising a jurisdiction in Asia on reforms to strengthen its system of commercial dispute resolution. He has worked on several projects involving court reforms and judicial training, and contributes a regular column called Lexicon to China Business Law Journal.
