The argument is not simply whether a judge should retire at 65 or 67 – concerns centre on incumbent judges, judicial independence, consultation and whether the People must ultimately decide
COLOMBO, Sunday – On the surface, the Government’s proposal appears almost deceptively simple. People live longer, professional careers last longer and judges accumulate enormous experience. Why, then, should a Supreme Court judge necessarily leave the Bench at 65 rather than 67?
Put that way, extending judicial retirement ages by two years hardly appears capable of producing the constitutional storm now gathering around the proposed 22nd Amendment. Yet the intensity of the opposition becomes easier to understand once an important distinction is made: for many critics, the argument is not principally about age.
It is about judicial independence, security of tenure, the position of sitting judges and whether changing the rules governing identifiable judges already holding office crosses a constitutional line.
The position of the Bar Association of Sri Lanka is particularly important because it can easily be misunderstood. The Bar’s opposition should not simply be characterised as an insistence that Supreme Court judges must retire at 65 and Court of Appeal judges at 63 forever. Indeed, there is a perfectly rational argument for reviewing retirement ages as life expectancy increases and professional careers become longer.
The difficulty arises from applying the new ages to judges presently occupying the Bench.
There is a considerable difference between Parliament declaring that judges appointed in future will retire at 67 and changing the retirement date of a judge who already holds office under constitutional provisions specifying retirement at 65.
Critics argue that the latter alters the tenure of identifiable incumbents. The Government responds that the proposed amendment does not select particular judges for preferential treatment. It establishes a uniform retirement age applicable to an entire constitutional class of judicial officers.
That distinction lies at the heart of the controversy.
Judicial independence is frequently discussed in terms of protecting judges against dismissal or political pressure, but the principle extends further. Security of tenure exists partly to ensure that judges can decide cases without depending upon the Executive or Legislature for their continuation in office.
Opponents therefore argue that if Parliament can alter the tenure of judges already serving, even byextension from the President or Cabinet. Parliament is instead being asked to alter the Constitution itself for all judges falling within the relevant category.
The referendum argument rests substantially upon Article 3 of the Constitution, which declares that sovereignty is in the People and is inalienable, read together with the provisions concerning the exercise of the People’s judicial power. Those opposing the amendment argue that judicial independence is an essential component of that sovereignty and that altering the tenure of incumbent superior-court judges consequently engages an entrenched constitutional protection.
An earlier Supreme Court Special Determination delivered in 2022 has assumed particular importance because its reasoning concerning changes affecting the retirement age or tenure of incumbent judges is now being relied upon by opponents of 22A.
If that reasoning governs the present Bill, the implications could be considerable. The amendment could require not merely the two-thirds parliamentary majority necessary to amend the Constitution but approval by the People at a referendum.
There is nevertheless an important qualification. The present 22nd Amendment has not yet received its own Supreme Court determination. The earlier reasoning will plainly be highly relevant if the Bill is challenged, but the Court will have to determine the constitutionality of the legislation actually placed before it.
There is also the unusually sensitive question of who determines that issue. Supreme Court judges could be required to decide whether legislation potentially extending the tenure of members of their own Court is constitutional.
That does not mean those judges are biased, and such an allegation should not casually be made. The concern raised by the Bar and the UN Special Rapporteur on the independence of judges and lawyers relates instead to actual or perceived conflict and the importance of maintaining public confidence in judicial impartiality.
The UN intervention has consequently added an international dimension to what was already an intense domestic debate. Importantly, the argument is not that judicial retirement ages can never legitimately be increased. Longer tenure can preserve expertise, experience and institutional continuity. The concern is whether extending the tenure of sitting judges without adequate transitional safeguards could create a perception of Executive or Legislative interference with the judiciary.
Religious leaders, civil-society organisations and Opposition politicians have raised additional concerns over consultation and the manner in which the constitutional change is being pursued. They argue that altering the rules governing one of the principal institutions of the State warrants a broader discussion involving the judiciary, legal profession, constitutional specialists and society.
That is an important criticism, but it should be distinguished from the question of constitutional legality. A Government can follow the formal constitutional procedure and still face legitimate criticism that consultation was inadequate. Equally, extensive consultation cannot cure a Bill which fails a constitutional requirement.
The Government has also linked the proposal to the wider problem of delays in the administration of justice. Retaining experienced judges while expanding the number of judges and increasing institutional capacity forms part of its stated reform programme.
Critics respond that Sri Lanka’s enormous case backlog cannot realistically be attributed principally to Supreme Court and Court of Appeal judges retiring two years too early. Delays occur throughout the system and involve court capacity, investigations, prosecutorial resources, adjournments, Government Analyst reports and congestion in the lower courts.
There is merit in examining both arguments. Experienced judges are valuable. Equally, keeping judges longer at the top can delay vacancies and consequently slow the progression of judges further down the judicial hierarchy.
What should not be lost amid the increasingly heated rhetoric is that considerable opposition to the Government’s proposal does not itself establish that the Government is acting outside the Constitution.
The Government has approved the proposal, gazetted the Bills and is taking them to Parliament. The Constitution then provides the opportunity for citizens to challenge the amendment before the Supreme Court.
If challenged, the Court determines what the Constitution requires. If it says a two-thirds parliamentary majority is sufficient, Parliament may proceed on that basis. If it determines that Article 3 is engaged and a referendum is necessary, the Government must either satisfy that requirement or alter its legislative course.
There is presently no indication from the Government that it intends to disregard that process.
That leaves Sri Lanka with an important distinction which should perhaps guide the entire debate. Opposition to a constitutional amendment does not, by itself, make the amendment unconstitutional. Equally, a determination that an amendment is constitutionally permissible does not necessarily make it wise.
One is ultimately a question of law.
The other remains a question of judgment.
