“2022 SC judgement holds that changing incumbent judges’ retirement ages  adversely affects judicial independence”

By Saman Indrajith

SJB and Opposition Leader Sajith Premadasa yesterday told Parliament that a constitutional amendment seeking to extend the retirement age of Supreme Court judges would require people’s approval at a referendum. He cited a 2022 Supreme Court determination which, he said, held that such a change would adversely affect the independence of the judiciary.

Making a special statement under Standing Order 27/2, Premadasa referred to the Supreme Court determination on the constitutionality of the Inland Revenue (Amendment) Bill delivered in 2022 by Justices Buwaneka Aluwihare, PC, Murdu N.B. Fernando, PC, and Janak de Silva.

Quoting from the determination, Premadasa told the House that “unlike public officers and others holding office under the Constitution, the retirement age of the judges of the Supreme Court and Court of Appeal are specified in the Constitution. Any Constitutional amendment to the retirement age or the period of office impacting on incumbent judges, whether directly or indirectly, will impinge on the independence of the judiciary and violate Article 3 which requires a Referendum.”

Premadasa urged the government to take note of the ruling, alleging that despite the Supreme Court’s position, the Justice Minister and the Chief Government Whip had informed the media that a referendum was not necessary..

Premadasa said that although the government had sought to justify the proposed Constitutional amendment on the basis of improving judicial efficiency, it had been opposed by several legal organisations, including the Bar Association of Sri Lanka (BASL). He added that a 2023 report prepared for the Ministry of Justice with technical assistance from the Asian Development Bank (ADB) had identified different priorities for reform.

Premadasa questioned whether extending judges’ retirement age was being pursued as part of a broader judicial reform programme and called on the government to present the remaining reforms, together with a clear implementation timeline.

Pointing to an estimated backlog of 1.1 million pending cases, Premadasa said judicial reform should be based on a comprehensive feasibility study and questioned why the government had not relied on the 506-page assessment report, prepared in 2024, or commissioned a similar study.

The Opposition Leader also sought clarification on whether the government had adequately consulted the BASL, the Law Commission, the Attorney General’s Department and the Judicial Service Commission before proceeding with the proposed constitutional amendment.

Pointing out that judges themselves had rejected the proposal by a margin of 65-0, MP Premadasa said several international legal organisations had also raised concerns that the proposed amendment could undermine judicial independence.

Premadasa called on the government to disclose studies demonstrating that extending the retirement age of judges, without first filling existing vacancies in the Supreme Court and the Court of Appeal, would help reduce delays in the administration of justice. He also requested details of the performance indicators the government intended to use to measure the success of judicial reforms and how the proposed extension would improve those indicators.

He asked the government to reveal when the proposed constitutional amendment had been submitted to the Legal Draftsman’s Department, when it had been approved by the Attorney General, and when it would be gazetted and presented to Parliament for its First Reading.

Premadasa also urged the government to invite the BASL to brief Members of Parliament on the proposed amendments, noting that the SJB had requested such an opportunity. Referring to remarks by the BASL President, he said the Mahanayake Theras of the three Nikayas had also conveyed their opposition to the President in writing and called for that letter to be tabled in Parliament.

He urged the government to subject the proposal to broader public and professional scrutiny, arguing that it should refrain from amending the Constitution solely in relation to the judiciary while simultaneously pledging to introduce a new Constitution to abolish the Executive Presidency.

Responding, Justice Minister Harshana Nanayakkara said the proposal to extend the retirement age of judges was only one component of a wider programme of judicial reforms aimed at improving the efficiency of the court system.

He said the reform programme had been underway since the present government assumed office and would continue throughout its five-year term and beyond.

Nanayakkara said the government had increased the number of courts, identified 11 High Courts with severe case congestion for expansion outside Colombo, and was recruiting judges to the lower courts, while the Judicial Service Commission was appointing additional magistrates.

He added that the government had already implemented several of the more than 160 recommendations contained in the judicial efficiency assessment prepared by President’s Counsel Harsha Fernando under an ADB-supported programme. The government had also taken into account recommendations made by a Constitutional Council subcommittee, headed by Rauff Hakeem, and proposals submitted by former BASL President Jeffrey Alagaratnam to the Parliamentary Committee on Judicial Reforms, chaired by Lal Wijenayake.

The Justice Minister said the draft Bill to extend the retirement age of judges had been received from the Legal Draftsman’s Department on July 28, 2026, and was certified by the Attorney General on July 31, 2026, as being consistent with the Constitution.

He said the Bill would be gazetted after receiving Cabinet approval and presented to Parliament following the expiry of the mandatory seven-day period after publication in the Gazette.

Parliament