Lord Denning’s philosophy offers a useful framework for Sri Lanka’s debate over extending judges’ retirement ages
Few judges have influenced the development of the common law more profoundly than Lord Denning, Master of the Rolls. Revered by generations of lawyers throughout the Commonwealth, Denning rejected the notion that the law should become trapped in the circumstances of a bygone age. Society changes, he believed, and the law must evolve with it if justice is to remain meaningful.
Yet Denning drew an equally important distinction.
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However creative judges might be in developing the common law, they were not legislators. Courts could interpret statutes, fill gaps in the law and adapt legal principles to changing social conditions. They could not rewrite legislation simply because they considered a different policy preferable. In a constitutional democracy, that remained the responsibility of Parliament.
Those two principles provide an illuminating framework for the debate now unfolding in Sri Lanka over the Government’s proposal to extend the retirement age of judges of the Supreme Court and Court of Appeal.
Viewed purely as a matter of public policy, there is a persuasive argument that judicial retirement ages deserve periodic review. Life expectancy has increased significantly over recent decades. Many judges today remain intellectually vigorous and professionally active well beyond the retirement ages fixed when the present constitutional provisions were drafted. Superior court judges acquire experience over decades of practice and judicial service and retaining that experience for a longer period may strengthen consistency in decision-making, reduce the loss of institutional knowledge and assist in addressing increasingly complex constitutional and commercial litigation.
Comparative experience also demonstrates that there is no universal model.
In the United Kingdom, judges generally retire at 75 following recent legislative reform. Australia prescribes retirement ages through its Constitution and State legislation, while India’s Constitution fixes the retirement age of Supreme Court judges at 65 and High Court judges at 62. Around the world, retirement ages have been adjusted from time to time in response to demographic change and evolving judicial workloads The existence of sound policy reasons, however, does not answer the constitutional question presently confronting Sri Lanka.
Opponents of the Government’s proposal do not necessarily argue that judges should always retire at their present ages. Their principal concern lies elsewhere. The retirement age of judges of the Supreme Court and Court of Appeal is expressly provided for in the Constitution. Altering those provisions while serving judges remain in office raises questions concerning judicial independence, security of tenure and public confidence in the impartiality of the judiciary.
The Bar Association of Sri Lanka has previously argued that because judicial tenure is a constitutional safeguard designed to protect judicial independence, any amendment affecting incumbent judges requires the most careful constitutional scrutiny. Some constitutional lawyers go further, contending that such a change may engage entrenched provisions relating to the sovereignty of the People and therefore require approval not only by Parliament but also, potentially, by the People at a Referendum. Others reject that interpretation, maintaining that Parliament possesses the authority to amend the Constitution through the procedures it already prescribes.
That disagreement is precisely why the issue has become so significant. It is no longer simply a debate about age. It has become a debate about constitutional method.
Lord Denning would almost certainly have recognised the distinction. If society concludes that judges should serve longer because people live longer and remain professionally capable, that is a perfectly legitimate subject for legislative reform. Indeed, Denning himself consistently recognised that the law must adapt to changing realities.
Equally, he may well have insisted that such adaptation occur through the proper constitutional process.
Judges should not legislate from the Bench, and Parliament should not legislate without observing the constitutional safeguards that protect the institutions upon which democracy depends.
Sri Lanka therefore faces two entirely separate questions.
The first is whether extending judicial retirement ages represents sound public policy in the twenty-first century.
The second is whether the constitutional pathway chosen to achieve that objective satisfies the requirements of the Constitution itself.
Those questions should not be confused. A proposal may be wise in principle while remaining contentious in constitutional method.
Equally, a proposal may ultimately be upheld because it has followed every constitutional safeguard available.
That is why the present debate deserves to be conducted with care rather than political passion. Constitutional reform is rarely judged solely by its destination. More often, history asks whether the journey respected the Constitution it sought to amend.
