Judicial Overstay: Tinkering with the Tail End of Judges’ Tenure

David Kosař and Patrick Leisure

Masaryk University, Czechia

In courts around the world, judges sometimes overstay their original mandate. In Hungary, after packing the Constitutional Court, Prime Minister Orbán’s government extended the term length and mandatory retirement age to keep his new judges on the court. In Spain, recent political deadlock over appointments to the Constitutional Court also led to judges staying longer on the bench. In Brazil, the so-called “walking stick amendment” raised the retirement age of Supreme Court judges from 70 to 75 years and thus pre-empted the new President Dilma Rousseff’s selection of new judges during her term. In South Africa at the end of apartheid, upon reaching the retirement age Chief Justice P.J. Rabie stayed on the bench for three more years because the government mistrusted his replacement, the human rights friendly Judge Corbett. Article 128 of the Indian Constitution allows retired Judges of the Supreme Court to be rehired on an ad hoc basis. In certain Australia states, such as Queensland, a former judge can be appointed to the same court as an acting judge beyond the normal retirement age, effectively circumventing the mandatory retirement age of 70 years (a similar rule exists in New Zealand, see sections 111-115 here). In Nepal, Chief Justice Gopal Parajuli faked his date of birth in order to stay in office past the mandatory retirement age. In Canada, the British Columbia Provincial Court extended the tenure of Chief Judge Melissa Gillespie, at the request of the British Columbia attorney general, for over a year, due to the time-consuming process of appointing a new Chief Judge. Finally, after Trump won the United States presidential election in November 2024, reports even came out over “unretiring” judges who revoked their decision to take senior status, thus depriving Trump of the ability to fill a judicial vacancy. 

In this post, we shine a spotlight on an important transnational phenomenon that has thus far received very limited scholarly attention: when judges stay in office past their original mandate. We call this “judicial overstay”. We sincerely believe that this phenomenon should be studied in more detail as it is potentially as dangerous as court-packing, but may at the same time be a pragmatic solution that serves noble purposes such as providing timely justice and preventing dysfunction in the judiciary. These two faces of judicial overstay make the analysis of this phenomenon very complex and context dependent. Our aim is thus to start the debate, not to provide any concrete answers at this stage.    

What is Judicial Overstay?

Judicial overstay primarily concerns term limits and retirement ages of judges. Tentatively, we define judicial overstay as “staying in office longer than the maximum term as it stood when the judge originally came into office”. Judges might overstay through a number of different processes and for a number of different reasons, largely dependent on the relevant jurisdiction’s rules surrounding judicial selection and tenure. A judge’s term can be extended, the term limit can be abolished and replaced with life tenure, provisions may allow judges to stay on the bench until their successor replaces them (see also, CJEU Statute, Article 5), or a judge may simply refuse to vacate their seat after finishing their term. Equally, the mandatory retirement age can be raised or abolished, judges can be reappointed after reaching the retirement age (as has happened in India), or judges may circumvent retirement by various creative means, such as falsifying age records (which sounds outlandish but can even become widespread) or introducing a scheme of selective extensions beyond the retirement age upon submission of a medical check. Various forms of ‘senior status’ or quasi-judicial retirement exist that may also qualify as a form of overstay, depending on the specifics of the jurisdiction. Even more exceptionally, life limits on judging might even come into play. Judicial resignations can be refused, resignation letters can be post-dated, and/or constitutional conventions related to stepping down when judicial capacity is compromised can be evaded.

Where Does it Happen?

Judicial overstay is a phenomenon that occurs around the world and in relation to a myriad of different types of judges. It happens in the Global North and Global South, in a range of political contexts, and in civil and common law jurisdictions. While we do not mention every example here (though we are in the process of creating a global database of “judicial overstays” that already consists of hundreds of examples), consider the following regarding the range of judges that may overstay.

Judges on apex courts can overstay, such as in Argentina, where former Supreme Court Justice Elena Highton de Nolasco made headlines when she won a legal challenge allowing her to continue on the bench past the retirement age of 75. In Thailand, most of the justices of the Constitutional Court, whose terms were supposed to expire in 2017, saw their tenure extended by order of the military junta. In some countries, such as Singapore, term extensions of high court judges are common and legal. Lower court judges can also overstay as seen above in Canada.

Specific types of judges, such as Chief Justices or Court Presidents can enter the discussion. Chief Justices can overstay, such as in Tanzania, when the President in 2023 extended the term of the Chief Justice Ibrahim Juma beyond his mandatory retirement age (see also debates in Malaysia here). Supreme Court Presidents can also see their term extended, such as the ultimately failed attempt in Mexico of President López Obrador to extend Justice Arturo Zaldivar’s term as Supreme Court President (extensions can affect presiding judges too). In Hungary it worked out though, as Prime Minister Orbán’s government de-facto prolonged the term of András Zs. Varga, the President of the Kúria (the Supreme Court in Hungary).

So-called ‘additional judges’ can also overstay, such as in India, where the Supreme Court Collegium recommended one-year extensions for nine additional judges of the Calcutta High Court (see also Bosnia and Herzegovina and Spain [articles 428-433]). Ad hoc judges can also see their tenure extended. Special court judges, such as on electoral courts or even impeachment courts can also enter into the overstay discussion, as can foreign judges, such as in relation to Judge Hoffman’s recent extension on the Hong Kong Court of Final Appeal. International judicial overstay can even occur too, as happens at the European Court of Human Rights.

Judicial overstay is thus ubiquitous but understudied in comparative scholarship. In fact, it is often clandestine and invisible, as its true beauty is that it changes the composition of the judiciary without actually making a visible change, since the point of it is normally to prevent a change on the bench that would have otherwise happened,. Moreover, judicial overstay can be very consequential, as we show below.

Why is Judicial Overstay Important: An antidote to dysfunction or poisonous itself?

The reasons for judicial overstay are numerous, and the phenomenon can serve good judicial governance or it can be a tool of abuse, with many shades of grey in between. Overstay can keep the bench full until rotation and thus fulfil quorum requirements and prevent a situation of non-liquet. This is particularly important when political deadlock or blockages occur in appointments. In this way, overstay can counteract appointment inaction and avert a constitutional vaccum. As such, overstay provisions can prevent court-packing by emptying (here the paralysis in Taiwan’s Constitutional Court comes to mind). Where jurisdictions experience acute shortages of judges, for example in Hong Kong, overstay can function as a preventative tool. Instrumental overstay provisions may also keep courts running when countries are in political transition, or perhaps even in crisis due to other calamities, such as pandemic or war. Legitimate constitutional reform may seek to change judicial tenure provisions, although usually there is a mechanism by which these reforms can be phased in so as not to affect sitting judges. In addition, judicial overstay can help with efficiency. It can prevent overwhelming caseload back up, avert delays by allowing judges to finish certain cases on which they have already done substantial work, and preserve judicial expertise where necessary for specific cases or issues. In this sense, judicial overstay can preserve leadership in times of hardship for a judiciary, as was ostensibly the reason why President Zuma in South Africa asked Chief Justice Sandile Ngcobo to overstay on the bench (though this was ruled unconstitutional in the well-known Justice Alliance case).

That case’s ruling illustrates that judicial overstay is not only a positive phenomenon, but can have a dark side as well. One must be aware of the strategic interests in play from multiple vantage points, and appearances can matter (e.g. stacking cases at the very end of a judge’s tenure where judges stay on bench to finish cases), but looks can sometimes be deceiving. Inter-branch dynamics can play a role. Judges can be complicit in overstay, initiate the overstay themselves (such as where the Constitutional Court of Bosnia and Hercegovina changed its own Rules of Court to allow sitting judges to extend their mandate beyond the age of 70 in the event that their replacement has not been chosen), or judges can refuse to overstay. Moreover, it is well-established by now in the literature how powerful courts can be in advancing certain interests, which is why abusive constitutionalism can have such an impact. Abusive overstay, which keeps a loyal judge on a court or in a key judicial position such as Chief Justice, can similarly be a powerful tool in the autocrat’s playbook. Because overstay can function in a clandestine way relative to other techniques that require actively changing the composition of the bench (and because of the many justifications for overstay mentioned above, which can be abused and are difficult to disprove), it may fly under the radar. Keeping loyal judges on the bench can even allow an autocrat to engage in courtwashing—legitimizing government reforms or having the courts burnish tarnished reputations. In addition, sometimes it is precisely the extension of tenure that acts as a carrot for judges, making them dependent on the relevant actor in the constitutional system for extra time on the bench. Finally, as we saw above in Brazil, judicial overstay can rob the opposition of judicial appointments that they would have otherwise had. The dark side of overstay thus can jeopardize (or even weaponize) judicial independence and disrupt the relevant jurisdiction’s balance of powers.

Conclusion: Tentative Criteria to Evaluate Judicial Overstay        

In this post we introduced a new concept – “judicial overstay” – showed its bright as well dark sides, and explained why it is consequential. The next step is to identify factors that can help us to assess the legitimacy of a particular overstay mechanism and explore the motivations behind resorting to judicial overstay over potential alternatives. As to the factors, we believe we need to look at least at 6 variables: (1) legal embeddedness of the overstay mechanism; (2) the political context; (3) its temporal dimension (how long the overstay is); (4) whether it is an ad hoc or general overstay mechanism; (5) whether it is tailor-made for particular judges or rather applies generally; and (6) the process through which the overstay occurred. As to the rationales behind judicial overstay, we need in the future to devote more attention to the interplay between judicial overstay on the one hand and renewable terms and retention elections on the other. We should also explore why judicial overstay may be chosen over its alternatives to combat dysfunction and deadlock (such as substitute judges or selecting new apex court judges by seniority or by lot) and why some autocrats prefer judicial overstay to court-packing or curbing courts’ powers.

We need to better understand judicial overstay because it is a global phenomenon that is increasing in frequency, and because judicial overstays are ending up before numerous courts around the world (see, e.g., here, here, here, here, and here). Supranational advisory bodies such as the Venice Commission will also have to address instances of overstay. To do so meaningfully, they likely do not need to pinpoint any one ideal balance, but they do need to understand the relevant considerations at play and strategic dynamics driving the phenomenon of judicial overstay.

David Kosař is Professor of Constitutional Law and Co-Director of the Judicial Studies Institute at Masaryk University in Brno, Czechia.

Patrick Leisure is a Lecturer of Law and Researcher at the Judicial Studies Institute at Masaryk University in Brno, Czechia

Suggested Citation: David Kosař and Patrick Leisure, ‘Judicial Overstay: Tinkering with the Tail End of Judges’ Tenure’ IACL-AIDC Blog (26 August 2025) Judicial Overstay: Tinkering with the Tail End of Judges’ Tenure — IACL-IADC Blog