Justice Courtney Daye inspects a guard of honour at the opening of the Home Circuit Court, downtown Kingston, in March last year. - Norman Grindley/Deputy Chief Photographer
Beresford Hay, Contributor
There are reports that the Government has been considering introducing legislation to raise the retirement age of the judges of the Supreme Court from 70 to 72. At Independence, the age was 65 but it was subsequently increased to 70 - a substantial leap.
It seems reasonable that any further extension should be subject to the most careful deliberation and consultation with the bench, the Bar and the general citizenry. It should be linked to other judicial reforms, including the method of appointing judges, their terms and conditions of service, the process for assessing their performance, their training, development and promotion, appropriate disciplinary procedures, a code of judicial conduct and a review of the method of removing them from office. Consideration of this matter could be initiated during the ballyhoo surrounding the Justice Reform project.
There are cogent arguments for and against some form of extension. Certainly, it would enable the judiciary to have the continued service of those judges, perhaps at the peak of their powers, whose performances on and off the bench have been excellent and exemplary, and who are willing and still able to perform with distinction. It is possible, however, that a greater number of judges - some tired, reluctant and at the end of their useful careers, others egotistic, vainglorious and consumed by delusions of grandeur, and the rest just very average judicial 'Joes' and 'Janes' and poor performers - could be rolled over and foisted upon the society. The bench life of judges unfit for further service could be extended and dinosaurs spawned.
Old age is not the only factor which causes a judge's faculties to be dimmed. There are numerous examples of judges in different countries who, for various reasons, lost their mental grasp long before they were due to retire. One was a Lord Chief Justice of England. On the other hand, many judges have performed well to a ripe old age. In England Mr. Justice Avory sat on the bench until a few days before his death at age 83. The esteemed Lord Denning sat until age 83 when he resigned due to circumstances not connected to his ability to perform. One of the great judges of the 20th century, Oliver Wendell Holmes of the United States Supreme Court, a very ill man, died in office at age 80. Paradoxically, his successor was 50-year-old John Roberts, the country's youngest Chief Justice in two centuries.
There are many reasons, in addition to those already mentioned, why there should not be a general increase in the retirement age of judges. It has been argued that judges should remain relevant to what is happening in the society. They should be 'current' - not from a past generation. Such increase would result in the extension of the tenures of all judges - the good, the bad and the ugly. It could amount to breaching the terms and conditions of serving judges and forcing reluctant judges to continue in office. This could well be unconstitutional and result in litigation. Extending the terms of sitting judges could stifle or stultify the careers of able young judges and bright members of the Bar who are potential judges. There is the need for the constant renewal or refreshing of the judiciary with the infusion of new blood and an abundant supply of oxygen. There should be no place for dead wood in the Jamaica judiciary.
If the proposed increase is done in haste or is made applicable to sitting judges, it could give the impression of political interference with, manipulation of, or attempting to curry favour with the judiciary. Some might see it as rewarding or enticing those who are perceived to be loyal or establishmentarians - even if there is no justification for so doing. It could see the judiciary being embroiled in political controversy - quite unnecessarily.
There seems to be no compelling reason for raising the retirement age of judges at this time. If it is eventually done, it should apply only to judges who are appointed after the passage of the amending legislation and not before other areas of judicial reform are addressed. In any event, there should be certain restrictions on, or preconditions for, advancement from age 70 to the new retirement age.
No need to reinvent the wheel
Jamaica does not exist in a vacuum. There is no need to reinvent the wheel. In spite of the views expressed above, the Government would be well advised to look at what provisions exist in other Caribbean countries and the wider Commonwealth, not only in respect of the retirement age of judges, just with regard to the judiciary generally. In the United Kingdom, for example, a sea change has been effected since April 2006 with the establishment of an independent Judicial Appointments Commission, which has removed political influence from the appointment of judges and other related issues.
This might also be an appropriate time to take a look at the retirement age of Resident Magistrates, legal officers and, indeed, of civil servants. The Jamaican judiciary is largely a career judiciary. It is in reality part of the civil service, the mystique of wigs, gowns, robes and strange-sounding titles notwithstanding.
Merit, not old age or length of service, should be the sole criterion of judicial eligibility. Jamaica needs a meritocratic, not a gerontocratic, judiciary.
Any attempt by the Government to rush legislation through Parliament to raise the retirement age of judges, even if it has the support of the Opposition, would be unwise and irresponsible. Many would cry politics, others would cry foul, some would cry wolf - few, if any, would cry justice.