Parliament Can Change the Retirement Age for Tomorrow’s Judges. But Giving Two More Years to the Judges Sitting There Today May Require Something Parliament Cannot Provide on Its Own — The Consent of the People
COLOMBO – At first sight, the argument surrounding the 22nd Amendment appears almost absurdly simple. The Government wants Supreme Court judges to retire at 67 instead of 65 and Court of Appeal judges at 65 instead of 63.
Why, then, all the constitutional fuss over two years?
Because the real question before the Supreme Court is not whether Parliament can change a judicial retirement age. It is whether Parliament can change it for judges already holding office, thereby extending an existing constitutionally defined tenure.
That distinction between what lawyers call prospective and retrospective operation may ultimately determine whether 22A can be enacted by Parliament with the required special majority or must additionally be approved by the people at a referendum.
The Bill proposes to replace Article 107(5), raising the two retirement ages. In the case of the Chief Justice, retirement would occur at 67 or after six years as Chief Justice, whichever comes first. Crucially, however, the proposed provision does not expressly say that the new ages apply only to judges appointed after the amendment takes effect.
That is where the difficulty begins.
If Parliament were to provide that every judge appointed after the new law comes into operation retires at the higher age, it would be laying down the conditions applying to future judicial appointments. No sitting judge would receive another day in office.
But if the new retirement ages apply immediately to judges already serving, Parliament would be altering the tenure under which identifiable judges were appointed. A Supreme Court judge presently due to retire at 65 could remain until 67; a Court of Appeal judge due to leave at 63 could remain until 65.
The difference is not merely grammatical. It goes to the old legal distinction between procedural and substantive law.
Procedural law generally governs the machinery through which the law operates: how proceedings are conducted, how claims are brought, how evidence is dealt with and how courts administer cases. Changes of procedure can often apply to matters already under way because they do not necessarily alter an existing substantive right or legal status.
Substantive law is another matter. It creates, removes or alters rights, liabilities, powers and legal status. Courts consequently approach retrospective interference with established substantive positions far more cautiously.
The retirement date of a constitutional judge is difficult to describe as mere procedure. It defines how long that judge may exercise judicial office.
And judicial tenure carries an additional constitutional importance because security of tenure is one of the protections surrounding judicial independence.
That takes the argument directly to Articles 3 and 4 of Sri Lanka’s Constitution.
Article 3 declares that sovereignty is in the people and is inalienable. Article 4 establishes how that sovereignty is exercised, including the exercise of the people’s judicial power through courts and other institutions created or recognised by the Constitution.
Article 83 then supplies the formidable lock. Where legislation infringes certain entrenched constitutional provisions, including Article 3, Parliament cannot complete the job by itself. Approval by the people at a referendum is also required.
That is the foundation of the challenge now before the Supreme Court. Petitioners argue that extending the tenure of incumbent judges affects judicial independence, thereby impinging upon the judicial power belonging ultimately to the people.
It is an argument made considerably more powerful by an earlier Supreme Court determination which addressed this very territory.
In that determination, the Court said that a constitutional amendment concerning retirement age or period of office which impacts incumbent judges, directly or indirectly, would impinge upon judicial independence and violate Article 3, thereby requiring a referendum.
That is an unusually pointed precedent for the challengers to place before the present Court.
It also produces a rather obvious solution.
The Government need not necessarily abandon its policy that judges should serve longer. It could make the higher retirement ages prospective, applying them expressly to judges appointed after the amendment comes into force.
That would not automatically dispose of every conceivable constitutional objection. But it would remove the central complaint that Parliament is changing the tenure of judges already occupying judicial office.
President Anura Kumara Dissanayake has vigorously defended the proposal, arguing that Sri Lanka’s enormous delays in dispensing justice demand reform. That is a legitimate policy argument. Courts taking years, sometimes decades, to conclude litigation plainly cannot be regarded as satisfactory justice.
But whether judges should serve longer and whether the tenure of sitting judges should be extended are two separate questions.
A two-thirds parliamentary majority is enormously powerful. It is not, however, unlimited.
The Constitution deliberately reserves certain decisions to the people themselves. If the Supreme Court concludes that retrospective application of 22A interferes with judicial independence sufficiently to engage Article 3, Parliament may pass what it likes by two-thirds and still be unable to make that provision law without a referendum.
The difference could therefore come down to two years – and who gets them.
For tomorrow’s judge, Parliament is establishing the finishing line before the race begins.
For today’s judge, it may be moving that finishing line while the race is already being run.
Be that as it may, there is a remarkably simple test of the Government’s stated purpose. If 67 and 65 are the right retirement ages for Sri Lanka’s future judiciary, make them the retirement ages of Sri Lanka’s future judges.
The factual framework is grounded in the Bill itself, Parliament’s record of its presentation and the current Supreme Court challenges. The Bill does indeed replace Article 107(5) without an express future-appointees-only transitional provision, while the challenges specifically argue that application to serving judges engages judicial independence and Article 3.
