The argument before the Supreme Court over the 22nd Amendment risks being reduced to a convenient question: should Sri Lanka’s superior court judges be
allowed to work for another two years? That is not the real issue before the Court, nor is it the question that ought to concern the public most.
There may be perfectly sensible reasons for increasing the retirement age of judges. People live longer, professional careers last longer and judges frequently reach the height of their experience just as the Constitution requires them to retire. If Parliament believes Supreme Court judges should retire at 67 instead of 65, and Court of Appeal judges at 65 instead of 63, there is nothing inherently objectionable about Parliament proposing such a change.
The difficulty is not necessarily the new retirement age. It is whether the new retirement age should apply to judges already holding office.
There is a considerable constitutional difference between telling future judges that they will retire at 67 before they accept appointment and telling judges who accepted office under an existing constitutional arrangement that Parliament has subsequently decided to give them another two years. The first changes the rules for the future. The second potentially changes an existing tenure.
That distinction is one of the reasons why the proposed amendment has attracted an extraordinary 67 petitions before the Supreme Court. It also explains why this controversy cannot responsibly be dismissed as opposition politics or resistance to judicial reform.
The Constitution does not protect judicial tenure because judges require particularly secure employment. It protects their tenure because citizens require independent judges. Anyone standing before the State must be able to believe that the judge hearing the case neither owes the Government anything nor fears losing anything from it.
Consider the principle from the opposite direction. Suppose a future Parliament decided that Supreme Court judges should retire at 60 instead of 65 and attempted to apply that change immediately to the existing Court. There would rightly be alarm because Parliament would effectively possess the ability to shorten the tenure of judges presently exercising judicial authority over the State.
The fact that 22A travels in the opposite direction does not make that constitutional concern disappear. If political power should not be capable of taking years away from sitting judges, there is good reason to examine extremely carefully whether political power should be capable of giving years to them either.
The Government says the proposal forms part of wider judicial reform rather than an attempt to prolong the tenure of particular judges. That explanation deserves to be considered fairly. Sri Lanka certainly has a serious problem with court delays, and retaining experienced judges while increasing the number of judges may contribute towards reducing an enormous backlog.
Good intentions, however, cannot by themselves answer constitutional questions. Constitutions exist precisely because governments are not permitted to decide for themselves that an objective is sufficiently desirable to overcome constitutional restraints.
There is also an obvious way of achieving the Government’s stated policy objective while avoiding much of the present controversy. Parliament could increase the retirement age prospectively. Judges appointed after the amendment takes effect would enter office knowing precisely when their tenure ends. No sitting judge would gain another day and no sitting judge would lose another day.
Such an arrangement would permit Parliament to reform the retirement-age structure without creating the appearance that political power is conferring additional tenure upon members of the judiciary already in office. It would also avoid placing judges in the uncomfortable position now confronting the Supreme Court.
Five Supreme Court judges are presently hearing challenges to legislation concerning the retirement age of Supreme Court judges. Senior counsel asked that the matter be placed before the full Court. That application was rejected and the five-member bench will determine the petitions. The decision must be respected, but the fact that the application arose at all illustrates the institutional sensitivity created by the amendment.
Their task is not to decide whether another two years would be useful to judges, whether the Government’s policy is attractive or whether Parliament possesses enough votes to enact it. Their task is to determine what the Constitution permits.
That takes the argument back to the foundation upon which Sri Lanka’s constitutional order rests. Sovereignty is in the People. Parliament exercises legislative power because the People have entrusted it with that power, while judicial power is exercised through the constitutional institutions created under that same sovereign arrangement. Neither Parliament nor the judiciary owns sovereignty.
That is why the referendum question matters. If the proposed amendment falls within Parliament’s constitutionally doverwhelming parliamentary majority cannot substitute itself for the electorate where the Constitution requires their approval.
Two-thirds of Parliament represents formidable political power. It does not transform Parliament into the People.
The danger lies in allowing today’s personalities to obscure tomorrow’s precedent. Governments change, Presidents change, Chief Justices change and judges retire. Constitutional precedents have a considerably longer life.
Whatever power is found to exist today will not belong exclusively to the present Government. It will be available to governments yet to be elected and politicians whose names we may not even know.
That provides perhaps the simplest test of all constitutional power. We should never decide whether a government ought to possess a particular power merely because we trust the people presently exercising it. We should ask whether we would willingly give precisely the same power to a government we profoundly distrust.
If the answer is no, the safeguard matters.
Sri Lanka does not need weaker judges, judges beholden to politicians or politicians beholden to judges. It needs a judiciary whose independence is not merely real but is seen by the public to be beyond reasonable suspicion.
The Government may ultimately persuade the Supreme Court that 22A satisfies the Constitution. The petitioners may persuade the Court that the amendment requires the approval of the People at a referendum. That determination properly belongs to the judges hearing the case.
But one principle ought already to be clear. Judicial independence is not a privilege belonging to judges. It is a protection belonging to every citizen who may someday need an independent judge.
Be that as it may, this was never really about giving judges another two years. It is about who possesses the constitutional power to give them.
