Government links longer judicial service to wider justice reform, but Sri Lanka’s case delays extend far beyond the retirement ages of its most senior judges
COLOMBO, Sunday – If Sri Lanka’s judges work for another two years, will cases actually move through the courts appreciably faster?
It is perhaps the most practical question surrounding the Government’s controversial retirement-age proposals – and one that risks becoming lost beneath the constitutional argument over referendums, judicial independence and Article 3.
The Government has not presented the retirement-age changes entirely in isolation. Its wider programme envisages expanding judicial capacity and strengthening institutions involved in the administration of justice, while the companion Judicature amendment proposes increasing the maximum number of High Court judges from 110 to 120.
Seen in that context, retaining experienced judges for longer has an understandable rationale.
A senior judge represents decades of accumulated legal and judicial experience. Replacing that expertise is not instantaneous. Additional years on the Bench preserve institutional knowledge and, in theory, provide additional judicial capacity without waiting for another generation of judges to acquire comparable experience.
But Sri Lanka’s notorious case delays are considerably more complicated than that.
Cases become delayed long before they reach the Supreme Court. Investigations take time. Reports from specialist State institutions take time. Prosecutorial decisions can take time. Cases are postponed. Witnesses become unavailable. Lawyers seek dates. Courtrooms and staff are limited. Lower courts carry substantial workloads.
An additional two years for a Supreme Court judge cannot by itself solve those problems.
Nor does the existence of a large national case backlog necessarily establish that the superior courts lack sufficient judges because experienced members retire too early.
This is where the debate requires evidence rather than assertion.
If longer tenure is being advanced partly as an answer to judicial delay, Parliament is entitled to know how much of the backlog exists at each level of the system, how long cases remain pending, what principally causes those delays and what measurable improvement another two years of judicial service is expected to produce.
There is also the question of replacement. Keeping an experienced judge for two additional years preserves that judge’s productivity and expertise, but the system does not ordinarily lose a judicial position when somebody retires. A vacancy arises and another qualified judicial officer can be elevated.
The Government can reasonably respond that replacement is not the same as experience. A newly elevated judge may be exceptionally capable but does not necessarily possess the institutional knowledge accumulated by somebody who has already spent years in a superior court.
That is a legitimate consideration.
It still leaves the larger question unanswered: where exactly is the bottleneck?
If the principal delays exist in Magistrates’ Courts, District Courts, High Courts, police investigations, prosecutions or forensic reporting, increasing retirement ages at the very top addresses only one component of a much larger machine.
Indeed, the Government’s proposal to expand High Court numbers may ultimately have greater practical significance for reducing delays than the retirement-age provisions which have generated most of the political attention.
Justice, of course, cannot be measured merely by how many cases a court disposes of. Judicial quality matters. Consistency matters. Experience matters. A system producing judgments more rapidly is not necessarily delivering better justice.
Retaining highly experienced judges may therefore possess value that cannot be captured simply by counting disposed cases.
But if that is the principal argument, it should be made clearly.
The controversy would benefit from separating two propositions which have increasingly become intertwined.
The first is that experienced judges are valuable and might reasonably serve for another two years.
The second is that extending their retirement ages will materially solve Sri Lanka’s enormous case backlog.
The first proposition has an obvious logic.
The second requires evidence.
Perhaps the retirement-age controversy therefore presents Sri Lanka with an opportunity to ask a considerably larger question.
How many cases are pending at each level of the judicial system? How old are they? Why have they been delayed? How many judges are actually required? How many courtrooms are needed? How much delay originates outside the judiciary? And which reforms would produce the greatest improvement in the time taken to deliver justice?
Answer those questions and the country can begin designing a justice system around evidence rather than assumption.
Extending retirement ages may form part of that answer.
It should not be mistaken for the whole of it.
Be that as it may.
