Judges’ retirement age faces scrutiny as medical lawyer Palitha Bandara Subasinghe raises concerns about cognition and judicial efficiency.
Sri Lanka’s proposed extension of the judges’ retirement age is medically unsuitable, according to medical lawyer Palitha Bandara Subasinghe.
He argues that age-related changes in processing speed, working memory and fluid intelligence could affect the demanding reasoning required from senior judges.
The debate follows a government policy proposal to increase the retirement age of Supreme Court judges from 65 to 67. It would also raise the Court of Appeal retirement age from 63 to 65. Sri Lanka’s Constitution currently fixes the respective limits at 65 and 63.
Subasinghe questions the scientific basis for extending judicial service when the compulsory retirement age for specialist medical officers remains 63.
He says judges carry a unique responsibility because their decisions can determine liberty, property rights and, in some cases, the future of human lives.
The public therefore expects judges to remain impartial, mentally sharp and capable of processing complex information without avoidable delay.
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Judges’ Retirement Age and the Ageing Brain
Subasinghe bases his argument on the effects of ageing on the prefrontal cortex.
This part of the brain contributes to executive functions such as reasoning, working memory, planning, decision-making and complex problem-solving.
Research shows that normal ageing can affect processing speed and several fluid cognitive abilities. Fluid intelligence involves solving unfamiliar problems and processing new information, while crystallised intelligence draws more heavily on acquired knowledge and experience.
Subasinghe argues that these changes become particularly important after 60 because senior judges regularly handle complicated evidence, legal principles and competing testimony.
However, normal cognitive ageing should not automatically be described as mild cognitive impairment, or MCI.
MCI is a clinical condition involving measurable cognitive impairment beyond the changes normally expected with ageing. It does not affect every older person, and chronological age alone cannot establish that an individual’s judicial capacity has declined. Research also shows considerable variation in cognitive ageing between individuals.
Nevertheless, Subasinghe maintains that policymakers must consider the overall risk of declining processing speed and mental fatigue when setting a compulsory retirement age.
He questions whether extending service to 67 would genuinely accelerate the resolution of cases.
Instead, he argues, the change could contribute to slower judgments or a higher risk of error where an individual judge experiences cognitive decline.
Why Judicial Reasoning Differs From Medical Practice
Subasinghe rejects direct comparisons between judges and specialist doctors.
He says doctors may continue benefiting from crystallised intelligence as their clinical experience and professional knowledge grow.
Doctors also rely on laboratory tests, medical scans, treatment protocols and multidisciplinary teams. Colleagues can review diagnoses and participate in treatment decisions.
A judge works within a different professional structure.
During a lengthy trial, a judge may need to evaluate conflicting evidence, oral testimony, legal precedents and factual disputes.
The judge must then apply the law and produce an independent decision.
Subasinghe describes this process as “solitary reasoning” because the ultimate judicial responsibility cannot be transferred to another person.
Judicial officers receive support from court staff and legal researchers. However, the judge remains responsible for assessing credibility, interpreting evidence and reaching the final conclusion.
Subasinghe argues that this work depends heavily on fluid intelligence, executive functioning and working memory.
Therefore, any decline in those areas may have a direct effect on the quality or speed of judicial decision-making.
The available research supports the broader finding that some fluid abilities and processing speed decline on average with age. However, it does not establish that all judges become medically unfit at a particular age. Older adults with strong executive functioning can continue performing well in complex decision-making tasks.
How the United States Handles Older Judges
Supporters of extending the judges’ retirement age may point to the United States, where Article III federal judges receive lifetime appointments.
The system reflects a constitutional decision intended to protect judicial independence rather than a medical conclusion about ageing.
American federal judges have no mandatory retirement age. They may continue in active service or voluntarily assume senior status after satisfying age and service requirements.
Senior status does not necessarily mean that every judge maintains only a minimal workload. Some continue handling substantial cases, while senior judges collectively contribute significantly to the federal courts’ workload.
Subasinghe nevertheless argues that the American debate demonstrates the risks created by lifetime tenure.
Questions have arisen over how courts should respond when an elderly judge experiences cognitive impairment but does not voluntarily retire.
He says Sri Lanka should not adopt foreign retirement practices without examining their constitutional structure, staffing arrangements and institutional safeguards.
Why Lawyers Can Continue Practising
Subasinghe also distinguishes judges from lawyers who may continue practising without a compulsory professional age limit.
First, a judge must consider both sides impartially before making a binding decision.
A lawyer normally represents one party and advances that client’s legal position. The lawyer does not exercise the court’s final decision-making authority.
Second, clients can choose their lawyers.
When a lawyer’s performance declines because of age, illness or another factor, clients may seek alternative representation. Court users generally cannot choose the judge assigned to their case.
Third, senior lawyers can distribute work among junior lawyers and other members of a law firm.
Junior practitioners may examine documents, conduct research and prepare drafts. A senior lawyer can then provide strategic guidance based on experience.
A judge may receive administrative or research assistance, but cannot surrender the responsibility for evaluating evidence or determining the judgment.
Fourth, private lawyers can reduce their workloads.
They may accept fewer cases or withdraw from demanding work according to their health and capacity. A serving judge must continue managing the cases allocated through the court system.
Subasinghe therefore argues that a lawyer’s reduced capacity primarily affects individual clients. By contrast, a judge exercises state authority, and any serious error or delay can affect wider public confidence in justice.
Experience Must Be Balanced Against Cognitive Risk
Judicial experience and legal maturity remain valuable public assets.
Older judges may possess extensive knowledge, professional judgment and a deeper understanding of legal principles. Crystallised knowledge can remain stable or improve even as some fluid abilities decline.
However, Subasinghe argues that experience alone should not settle the retirement-age debate.
He says the government must evaluate whether the proposed change will improve efficiency, address judicial vacancies or merely postpone succession within the superior courts.
The scientific evidence does not support assuming that every judge over 65 lacks capacity. Equally, policymakers should not ignore recognised age-related changes in processing speed and executive function.
A credible policy should therefore consider judicial independence, individual capacity, workload, medical evidence and the public’s right to timely justice.
Subasinghe concludes that presenting the extension as an automatic increase in efficiency is medically unsupported.
He calls for a scientifically informed age policy that protects judicial experience without overlooking cognitive health, accuracy and accountability.
The debate over the judges’ retirement age must ultimately focus on the integrity of justice rather than the interests of individual officeholders.
