Administration of justice and judicial term limits

There is a raging jurisprudential debate invoking the attention of academics, legal scholars, parliamentarians and others around the world today. It is this: at what age should judges retire and to what extent does the natural biological ageing process adversely impact the administration of justice? That point and related contextual issues are within this purview.

The administration of justice is neither an arcane concept nor process. Within the province of judges, the concern of this piece, administration of justice, entails the consideration of all the material facts of a particular case directly before him/her. It includes assessing all the admissible evidence, the persuasiveness of counsel’s advocacy, written submissions and a careful determination of the weight to be attached therein.

Ditto, the relative application or distinguishable features of legal precedents. And, in common law jurisdictions, stare decisis, whilst applying relevant statutes, civil and criminal procedural law, to equitably and reasonably determine the outcome of a case; concurrently meeting the overarching objectives of justice. Of course, the administration of justice is not the exclusive preserve of judges! There are other dramatis personae notably amicus curiae, court staff, bailiffs, expert witnesses, law enforcement agencies et al.

To be absolutely clear, there is no evidence whatsoever of an automatic correlation between ageing and a decline in cognitive abilities, to impede the ability of a judge to dispense justice according to law. Neurologists confirm that cognitive capacities are context specific. That is, they are specific to the unique mental, physical and psychological constitution of each individual. According to Murman, D. (2015), The Impact of Age on Cognition, National Library of Medicine: “cumulative knowledge and experiential skills are well-maintained into advanced age.” It is partly for this important reason that some jurisdictions afford Judges the opportunity to sit to 70, 80 and even for the rest of their lives so long as they possess the critical faculties, integrity, physicality and willingness to do so.

Within its federal system of government, Article III of the United States Constitution, for instance, explicitly establishes the judicial power of the United States in the US Supreme Court (USSC); and in such subordinate (Federal) Courts established by Congress. Section 1, therein, affirms that judges “shall hold their offices during good behaviour and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” Implicit in that provision is the capacity to effectively administer justice according to law.

That provision negates a mandatory retirement age for judges so long as the capacity exists to discharge their requisite obligations. It is upon that statutory foundation that the US Chief Justice and Associate Justices of the USSC hold their appointments, once confirmed by Congress, for a life tenure. That is, for the rest of their natural lives, unless they quit, lack capacity or if they are impeached. Other judges whose authority directly emanate from Article III include, Circuit Judges of the US Courts of Appeal, US District Court Judges and US Court of International Trade Judges. These categories of judges are also characterised as “Article III Judges” or simply, judges of superior courts.

However, judges appointed pursuant to Congressional legislative powers contained in Article I, section 1, of the United States Constitution do not enjoy a life tenure as the latter does not explicitly so provide. These include US Magistrates and those presiding over the US Bankruptcy Court, US Federal Claims Court, US Court of Appeal for the Armed Forces, US Court of Appeal for Veterans’ Claims, US Tax Court and Administrative law Judges presiding over US government agencies’ tribunals. They are characterised as “Article I Judges.”

The United Kingdom affords an interesting example too. Until 2020, the mandatory retirement age (MRA) for judicial officers was 70 years. However, the Public Service Pensions and Judicial Services Act 2022 Act, Schedule 1, section 11 (2), (a), (b); 3; 15; 16 (1), (2), (3); 4 (a), (b); 19 (2) and (3) et al; has increased the MRA for judges, magistrates and coroners from 70 to 75. Notwithstanding the United States’ and United Kingdom’s examples cited above, there are opposing schools of thoughts on the rationale for increasing judicial term limits from 65 to 70, 75 or, indeed, life tenures.

Proponents of longer-term limits advance strong arguments. One, higher term limits afford judicial continuity, legal certainty and inherent jurisprudential development. Two, longer judicial term limits facilitate stronger experiential outcomes in the administration of justice. Thus, from a micro-economic perspective, the experience acquired by judges as a direct corollary of iteratively presiding over tribunals, secures greater economies of scope, because that knowledge can be replicated, with reasonable adaptations, in civil, commercial or criminal matters, without a corresponding increase in the unit cost of a single judge. Three, job security is an entirely reasonable proposition in this context. Because a judge is guaranteed certainty of employment tenure, he/she, on a balance of probabilities, is less likely to be swayed by corruptive influences, bribes and grease payments.

Four, a 2020 UK Ipsos Mori Veracity Index placed judges in the top five most trusted professions. At the time, the retirement age was 70. The UK has since confirmed the MRA for judges as 75, partly as a result of longer life expectancy, and, thus far, there is no evidence that the increase in age has an adverse effect on public confidence in the UK. This is not to automatically draw the inference that what works in the UK can be extrapolated to other climes. Nevertheless, it does, ostensibly, indicate that higher judicial term limits are not inherently problematic.

Five, in a progressive democratic society, reinforced by effective leadership and the consistent application of the rule of law, it is patently iniquitous to cut short a judge’s career purely on the rather crude criterion of advancing age. That’s age discrimination after all, notwithstanding epic advances in artificial intelligence and its innovatively disruptive impacts on daily lives. Six, higher term limits insulate, and or should insulate, judicial officers from political interference.

Furthermore, Warren Buffett, the American billionaire, at over 90 years is still running one of the most successful companies in the world. If he can do that, why can’t a judge at 75 or 80 say? And the critical point is not whether one is a public appointment or private appointment. No! It is the capacity to do the job at hand and the critical reasoning faculties, integrity and judgment to do so. Finally, there is no proven causative nexus between longer judicial term limits and arbitrariness. The reason is simple: an incapable, inefficient or corrupt judge can be impeached or otherwise removed.

Opponents of higher judicial term limits or life tenures raise interesting counter-arguments too. They argue that the natural biological ageing process diminishes the mental acuity of even the most formidable human beings, and judges, are patently not exempted. Put differently, the law of diminishing returns affects human beings as a natural function of ageing and judges are not outliers. Therefore, there is no logical basis for higher judicial term limits. A secondary argument they raise is that, longer term limits freeze opportunities for younger judicial officers, who also need the relevant opportunities, which older judges have, to develop and sustain their own (younger judges) careers on the higher bench. Third, it risks accusations of bias, tension and, potentially, civil disobedience if judges are appointed to extremely longer terms by politicians of a particular political hue. The contention there is that a judge appointed by politicians, is less likely to decide cases against the ideological leanings of his/her political appointor.

Reviewing the contending arguments and counter-arguments above, the proponents’ contentions objectively afford the more compelling argumentation. The suggestion that a judge is more likely to be swayed by the ideological leanings of a political appointor is not borne out by objective facts in the United States and the United Kingdom. Those countries after all, have established, albeit imperfect, democratic traditions, where the rule of law is mostly honoured, rather than mostly breached. Besides, the constitutional doctrine of separation of powers does not divorce democratically elected representatives of the people – politicians, from constitutional duties like swearing-in Judges. So, the contention of an inexorable correlation between politicians and judges without more, is deeply flawed.

What, then, is the position in Nigeria? Have lessons been learned from global north countries with a common law jurisprudence? How, if at all, are the lessons being put into in effect? Section 291 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”), establishes that a judicial officer appointed to the Supreme Court or the Court of Appeal may retire upon attaining the age of 65 years and shall cease to hold office at the age of 70 years. Curiously, subsection (2), therein stipulates that a judge of any other court, like the State High Court, Federal High Court or the National Industrial Court, other than the Supreme Court or the Court of Appeal, may retire at the age of 60 years and shall cease to hold office at the age of 65 years.

Immediately, this raises questions as to proper rationale for the statutory divergence concerning the term limits of Federal Judges in the country. In other words, it is a constitutional lacuna, albeit a curable one, which has invoked the legislative powers of the National Assembly pursuant to the section 9 (2) of the Constitution on constitutional amendments. The requirements of that constitutional provision have been met. And, the Constitution Amendment Bill Number 20 (Uniform Retirement Age for Judicial Officers), having passed through all the relevant stages at the bicameral legislature of the House of Representatives and the Senate, now awaits the assent of the President. The singular recommendation is for this to be concluded at the earliest opportunity before his tenure ends on May 29, 2023 and to further facilitate a seamless transition of power. Nigeria is thus patently advancing its jurisprudence, legislative competence and seeking to keep up with trends in other advanced common law jurisdictions.

To conclude, higher term limits are entirely reasonable as the arguments for their sustainability far outweigh those against them, but more importantly, the effective administration of justice is safer in the hands of able, competent, experienced, honest and willing judges.

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria.