As the judges’ retirement Bill enters the next stage, attention shifts from the Gazette to the Supreme Court and Parliament
COLOMBO, Friday – With the publication of the Government’s Bill to extend the retirement age of judges of the Supreme Court and Court of Appeal now complete, the constitutional debate is entering an entirely new phase. What was until recently a policy proposal has become a legislative measure, and attention is expected to shift from political discussion to constitutional interpretation.
Under Sri Lanka’s constitutional framework, the gazetting of a Bill does not conclude the process. Rather, it begins a series of constitutional steps that could ultimately determine not only whether the proposed amendment becomes law but also the manner in which it may be enacted. The legislation proposes increasing the retirement age of Supreme Court judges from 65 to 67 years and Court of Appeal judges from 63 to 65 years, together with related amendments affecting the subordinate judiciary.
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Once the Bill is placed on the Order Paper of Parliament, any citizen may invoke the jurisdiction of the Supreme Court within the prescribed constitutional period to challenge its consistency with the Constitution. The Court will then be called upon to determine whether any provision of the Bill is inconsistent with the Constitution and, if so, whether it may be enacted by a two-thirds majority in Parliament alone or whether approval at a referendum is also required.
That constitutional determination is likely to become the next major battleground. The Government has consistently maintained that the proposal is intended to retain experienced judges, strengthen continuity within the superior courts and improve the administration of justice. Ministers have rejected suggestions that the amendment is designed to benefit any individual office-holder.
Those opposed to the proposal, however, argue that the issue extends beyond retirement ages. They contend that the Constitution presently guarantees the tenure of superior court judges and that altering the period of service of sitting judges raises wider questions concerning judicial independence, public confidence and the sovereignty of the People. It is those competing constitutional arguments that may ultimately come before the Supreme Court.
Legal observers note that the Court’s determination will not be concerned with whether extending judicial careers is good public policy. Rather, it will examine whether the constitutional procedure adopted by Parliament complies with the safeguards established by the Constitution itself. In that sense, the coming proceedings are likely to focus as much on constitutional process as on judicial tenure.
Whatever the outcome, the debate promises to become one of the most significant constitutional discussions in recent years. Beyond the immediate question of retirement ages, the Bill has revived wider issues concerning the relationship between Parliament and the judiciary, the protection of judicial independence and the limits of constitutional amendment.
For now, the publication of the Bill marks the end of one chapter and the beginning of another. The next decisive stage is likely to unfold not in Cabinet or the political arena, but before the Supreme Court, where the constitutional boundaries of Parliament’s proposal may ultimately be tested.
