Government gazettes constitutional amendment extending judges’ retirement ages – the argument now moves from policy to Parliament, and perhaps ultimately to the Supreme Court
COLOMBO, Saturday – The Government has formally gazetted the proposed Twenty-Second Amendment to the Constitution, moving its controversial plan to extend the retirement ages of Sri Lanka’s superior court judges from political debate into the legislative process.
Under the Bill, the retirement age of Supreme Court judges would rise from 65 to 67, while judges of the Court of Appeal would retire at 65 instead of the present 63. A parallel Judicature (Amendment) Bill has also been gazetted, extending the proposed changes further through the judicial structure.
The Government’s case is essentially that Sri Lanka should retain experienced judges for longer at a time when the courts are carrying a substantial backlog of cases. Supporters also point to increased longevity and international jurisdictions where judges routinely remain on the bench beyond Sri Lanka’s existing retirement ages.
But the controversy has never been principally about whether 67 is, in itself, an unreasonableage at which a Supreme Court judge should retire. The sharper constitutional question concerns the manner in which such a change is introduced and, particularly, whether an extension affecting judges already holding office alters the constitutional tenure upon which those judges were appointed.
That distinction has produced considerable opposition from sections of the legal profession. President’s Counsel have warned that extending the tenure of incumbent judges could affect judicial independence, with the argument being advanced that any measure impinging upon that independence may engage the sovereignty provisions of the Constitution and consequently raise the question of whether approval at a referendum is required.
The Government takes a different position. Deputy Minister Sunil Watagala has argued that the amendment will strengthen the judiciary and is consistent with the NPP’s manifesto commitments, while the proposal has already received the Attorney General’s constitutional clearance for publication.
There is consequently room for a distinction between the policy and its implementation. Parliament may legitimately conclude that Sri Lanka’s judges should serve for two additional years, particularly when comparable jurisdictions retain senior judicial experience considerably longer. It does not necessarily follow, however, that changing the tenure of those already appointed should be treated in precisely the same way as changing the retirement age prospectively for future appointees.
That may ultimately prove to be the most workable middle ground. Parliament could establish the higher retirement age as the future norm while ensuring that the transition does not create even the perception that individual judges have received an extension of office from the political branches of government.
The Bill must now travel through Sri Lanka’s constitutional process, during which its provisions may be challenged before the Supreme Court. What began as a Cabinet proposal has therefore entered the arena where the competing arguments over experience, efficiency, tenure and judicial independence can finally be tested against the Constitution.
Be that as it may, extending the working life of judges is not necessarily an assault upon judicial independence. The real test is whether Sri Lanka can achieve the benefits of retaining judicial experience without creating a precedent under which the tenure of judges appears capable of alteration by the government of the day.
The Gazette was published on August 7. Contemporary reporting confirms the proposed 67/65 ages and that the accompanying Judicature amendment addresses other levels of the judiciary.
