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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.

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