Judicial Independence, Constitutionalism and proposed increase in Judges’ retirement ages:

by Shelton Dharmaratne

The current debate in Sri Lanka over the proposed increase in the retirement ages of the Supreme Court and Court of Appeal judges is too important to be reduced to a disagreement between government and the Opposition, or between one political commentator and another. It is fundamentally a constitutional question.

It concerns the separation of powers, judicial independence, institutional integrity, public confidence in the courts and, ultimately, the constitutional protection available to every citizen against the arbitrary exercise of governmental power.

I have therefore found myself unable to agree with the reasoning advanced by Jehan Perera in The Island concerning the proposed extension of judicial retirement ages. My disagreement is not personal, political or partisan. It arises from a different understanding of constitutionalism and, particularly, from the distinction between the Government’s legal power to amend the Constitution and the government’s constitutional responsibility to exercise that power in a manner consistent with the rule of law and institutional independence.

The question is not simply whether Parliament can constitutionally amend the retirement age of the Supreme Court and Court of Appeal judges. The more important question is whether it is constitutionally responsible to alter the tenure of serving superior court judges at this particular moment, through an apparently expedited process, without comprehensive consultation, while the change may directly affect the tenure and composition of the existing higher judiciary.

That is where the central difficulty lies.

1. The issue is not whether retirement ages can ever be changed.

It would be intellectually inaccurate to argue that the retirement age of judges can never be increased. Constitutions are not immutable documents. Democratic societies may legitimately revise institutional arrangements when circumstances change. Life expectancy, judicial workload, recruitment difficulties, demographic changes and the increasing complexity of litigation can all justify a serious national discussion about judicial tenure.

Indeed, the Commonwealth Lawyers Association itself has recognised that an increase in judicial retirement ages is not objectionable in principle. The objection arises from the circumstances, method and timing of the proposed reform. That distinction is crucial. The argument, therefore, should not be “Judges can never have their retirement ages increased.” The stronger constitutional argument is:

“A constitutional rule governing judicial tenure should not be altered in an ad hoc manner, particularly where the alteration may immediately benefit serving judges, without compelling institutional justification, transparent consultation and safeguards protecting the appearance as well as the reality of judicial independence.” That is a considerably more defensible proposition.

2. Article 107(5) is not an ordinary employment regulation.

Under Article 107(5) of the Constitution, the retirement age is constitutionally fixed at 65 years for Supreme Court judges and 63 years for Court of Appeal judges. That is significant.

A judge of the Supreme Court is not merely an employee of the State. A superior-court judge exercises constitutional authority over Parliament, the Executive and public authorities. The courts may determine the legality of executive action, interpret legislation, protect fundamental rights and resolve disputes in which the government itself is a party. Consequently, the conditions governing judicial tenure possess a constitutional character that ordinary public-sector retirement rules do not possess.

A government may change the retirement age of ordinary public servants through ordinary legislation or administrative policy, subject to applicable legal safeguards. Changing the constitutionally guaranteed tenure of superior-court judges is fundamentally different.

It directly affects one of the institutional guarantees intended to protect judges from political pressure. That is why the retirement age cannot sensibly be examined only through the lens of administrative efficiency.

3. Constitutional power is not the same as constitutional legitimacy.

This is perhaps the most important distinction in the entire debate. The fact that Parliament possesses the constitutional procedure necessary to amend Article 107 does not mean that every politically convenient amendment is necessarily consistent with constitutionalism. Constitutionalism means more than possessing the numerical votes necessary to pass legislation.

It means that governmental power is exercised within a framework of principles designed to prevent arbitrary or self-serving use of State power. Sri Lanka’s constitutional history provides ample warning about what happens when governments possessing substantial parliamentary majorities regard constitutional amendment primarily as an instrument for achieving immediate political objectives.

The 18th Amendment and 20th Amendment demonstrate the dangers of weakening institutional checks and balances in the name of an electoral mandate. The lesson should not be that constitutional amendments are inherently suspect. The lesson is that constitutional amendment itself must be exercised with constitutional restraint.

A government with a two-thirds majority possesses greater capacity to amend the Constitution. It does not thereby acquire a greater moral or constitutional entitlement to amend institutional safeguards without consultation. Indeed, the opposite should be true.

The greater the concentration of political power, the greater the importance of independent institutional safeguards.

4. Timing matters in constitutional law. One of the weakest aspects of the argument supporting the proposed increase is the tendency to treat timing as irrelevant. It is not irrelevant. A constitutional amendment affecting judicial tenure may look entirely different depending upon whether it is introduced: Prospectively as part of a comprehensive constitutional review; after a lengthy public consultation; following an independent assessment of judicial manpower; without reference to the tenure of any particular sitting judge; or immediately before the retirement of a senior serving judge whose continued tenure would be affected.

The same numerical change can therefore have entirely different constitutional implications depending upon its context. This is why the present controversy cannot be resolved simply by pointing to countries where judges retire at 70, 75 or even later. The relevant question is not merely: “What is the retirement age elsewhere?” Instead, it is “how was the retirement age established, when was it changed, did the change apply prospectively or retrospectively, what consultation preceded it, and did the reform create a direct or perceived benefit for serving judicial office-holders?” Those are the constitutionally relevant questions.

5. The appearance of independence is itself constitutionally important.

Judicial independence must exist both in fact and in appearance. A judge may be completely independent in reality. Yet if reasonable members of the public can reasonably perceive that the judge’s continuation in office depends upon the goodwill of the political branches, public confidence may nevertheless be damaged.

That is not a trivial matter.

The Commonwealth Lawyers Association has specifically emphasised that the independence of the judiciary and public confidence in that independence are essential components of the rule of law.

LAWASIA has similarly expressed concern that extending the retirement age of sitting judges at the present time could be viewed as governmental interference with judicial independence.

This is not merely a political allegation originating from one opposition party. The concern has been articulated by established legal organisations whose institutional purpose includes the protection of judicial independence.

That does not prove that the Government is acting improperly. But it demonstrates why the Government has a heightened responsibility to eliminate reasonable grounds for such a perception.

6.The argument from judicial backlog is not sufficient by itself. The government’s principal public justification appears to be connected with the enormous backlog of cases and the need to retain experienced judicial officers. The Justice Minister has described the retirement-age proposal as one component of a broader effort to improve judicial efficiency and address a backlog of approximately 1.1 million cases. That is a legitimate public objective. Nobody can seriously dispute that Sri Lanka’s justice system requires urgent reform. Justice delayed is justice denied.

However, the existence of a serious judicial backlog does not automatically establish that extending the tenure of sitting superior-court judges is an effective remedy. A backlog is a systemic problem. It can involve the following: Insufficient judicial manpower; vacancies remaining unfilled; inadequate court infrastructure; outdated procedural laws; repeated postponements; insufficient research and administrative support; delays in investigations; delays in the Attorney General’s Department; delays in forensic and Government Analyst processes; inadequate digitisation; inefficient case management; and the absence of effective alternative dispute-resolution mechanisms.

Indeed, the government itself has acknowledged that the retirement-age proposal forms part of a broader package of judicial reforms. That admission is important. If the problem is systemic, then the constitutional tenure of serving judges cannot reasonably be presented as the principal solution. Retaining experienced judges may provide some additional capacity. But it does not, by itself, reform the procedures that cause cases to remain pending for years.

7.Vacancies should be addressed before constitutional tenure is altered. A particularly important question therefore arises.

If the State is experiencing a shortage of judges, why should the first response be to retain judges who have reached their constitutionally prescribed retirement age rather than urgently filling existing vacancies through the established constitutional appointment process?

Dr Nihal Jayawickrama has specifically raised this concern, pointing to unfilled vacancies in the Supreme Court and Court of Appeal and arguing that extending the tenure of serving judges could restrict progression within the judicial hierarchy. This is not merely an argument about career advancement. Judicial appointments are also part of institutional renewal.

A judiciary must preserve experience, but it must also provide opportunities for succession, renewal and the introduction of new judicial perspectives. If senior judges remain in office for additional years, the effect can cascade downward through the judicial hierarchy.

The government therefore needs to demonstrate empirically that the proposed extension will materially improve judicial capacity and case disposal rather than merely postpone the underlying manpower problem.

8. Comparative examples must be used carefully.

Supporters of an increase in retirement age may reasonably point to other jurisdictions. But comparative constitutionalism cannot operate by selecting a number from another country and importing it into Sri Lanka.

The United Kingdom, for example, increased the mandatory retirement age for judges through a process preceded by extensive consultation. The Commonwealth Lawyers Association has cited this as an example of institutional reform based on transparent and prospective reasoning rather than an immediate political intervention.

That comparison actually strengthens the argument for consultation in Sri Lanka.

The lesson from comparative constitutional law is not “other countries have older judges, therefore Sri Lanka should have older judges.” The proper lesson is “other constitutional democracies demonstrate that changes affecting judicial tenure should be carefully justified, transparently developed and institutionally insulated from immediate political interests.” The process is therefore as important as the outcome.

9. The danger of precedent.

This is perhaps the most serious long-term concern. Suppose the present government sincerely believes that extending judicial tenure is necessary. Suppose also that the current proposal is entirely free from improper political motivation. Even then, Parliament must consider the precedent it establishes. A future government may face a completely different political environment. It may decide that a particular Supreme Court judge is inconvenient. It might seek to shorten a retirement age. It might seek to extend the tenure of a sympathetic judge. It might restructure the composition of a court.

Once the principle is accepted that the constitutional rules governing judicial tenure can be altered midstream for immediate institutional or political reasons, future governments inherit that precedent. Constitutional design must therefore consider not merely the intentions of today’s government but the possibilities presented by tomorrow’s government. That is one of the central reasons why constitutionalism exists.

10. Judicial independence is not a privilege for judges.

There is another misconception that deserves correction. Opposition to the proposed amendment should not be portrayed as a demand by judges or lawyers to protect the privileges of the legal profession. Judicial independence is not a professional benefit. It is a public right. The ordinary citizen who challenges an unlawful executive decision needs an independent judge. The citizen whose fundamental rights have been violated needs an independent judge. The businessman seeking enforcement of a contract needs an independent judge. The accused person facing the coercive power of the State needs an independent judge.

A journalist, civil-society organisations or opposition politician challenging government action needs an independent judge. Therefore, the question is not “Should judges receive two additional years of employment?” The constitutional question is “Can citizens continue to have complete confidence that the judges exercising constitutional authority over Government are institutionally insulated from Government?” That is a fundamentally different question.

11. Why I disagree with Jehan Perera’s approach.

Perera’s argument, as I understand it from his recent Island article, places considerable emphasis on the need to challenge impunity, strengthen accountability and improve the functioning of institutions.

Those objectives are entirely legitimate. Indeed, they are indispensable to democratic governance. But I respectfully disagree with any analysis that treats the retirement-age proposal primarily as an administrative or continuity measure without giving sufficient weight to the constitutional problem created by altering the tenure of serving superior-court judges. Continuity in the judiciary is valuable. Efficiency is valuable. Experience is valuable. But constitutional independence is more valuable.

If continuity can be achieved only by creating a reasonable perception that the political branches are modifying the constitutional tenure of serving judges for immediate institutional benefit, then the State must pause and reconsider the method. The cure must not create a constitutional problem greater than the administrative problem it seeks to solve.

12. There is a legitimate alternative

Opposing the present proposal does not require opposing judicial reform. On the contrary, Sri Lanka urgently needs judicial reform. The government should consider a comprehensive programme involving: immediate filling of existing judicial vacancies; transparent and merit-based judicial appointments; increased judicial manpower where genuinely required; modern case-management systems; digitization of court records; improved research and administrative support for judges; procedural reform; stronger alternative dispute-resolution mechanisms; improvements to the Attorney General’s Department; faster forensic and Government Analyst processes; better court infrastructure; measurable performance indicators; and a comprehensive national consultation on constitutional judicial reform.

If the retirement age is genuinely believed to require revision, that issue should form part of that wider process. A properly constituted independent commission could examine the issue, publish evidence, consult the Judiciary, the Bar Association of Sri Lanka (BASL), the Judicial Service Association, academics, civil society and the wider public, and recommend whether any change is necessary.

Most importantly, consideration should be given to prospective application. There is a profound constitutional difference between saying: “Future judges appointed after the commencement of this reform will retire at 67” and saying: “Judges currently serving under one constitutional retirement regime will now remain in office for an additional two years.”

The former is institutional reform. The latter inevitably raises questions about the immediate beneficiaries of the amendment.

13. The government should welcome scrutiny rather than resist it.

If the government’s motivation is entirely institutional and administrative, it should have nothing to fear from consultation. Indeed, consultation would strengthen its case. The government could publish the data demonstrating; the number of cases each additional year of judicial service is expected to resolve; the number of judicial vacancies; the projected effect on case disposal; the age profile of the judiciary; the recruitment pipeline; the comparative costs of retaining judges versus appointing additional judges; the projected effect on judicial promotions; and the expected impact on court efficiency.

Evidence would transform the debate. Without such evidence, the public is left primarily with political assurances. Constitutional reform of this importance should not depend upon assurances alone.

14. The real test is constitutional restraint

Sri Lanka has repeatedly experienced the consequences of governments possessing substantial political power using constitutional amendment to reshape institutions.

The present government came to office promising systemic change. That makes the present controversy even more important. A government committed to institutional reform should demonstrate that constitutional power will be used differently from the governments it criticised.

The strongest demonstration of political maturity would therefore not be to use a two-thirds majority to pass an amendment quickly. It would be to use that majority to create a constitutional settlement broad enough to survive the Government that introduces it. That requires consultation.

It requires evidence. It requires institutional humility.

And it requires the government to ask a question that every constitutional government should ask, “Would we be comfortable with this same constitutional power being exercised by a future government whose political objectives we profoundly oppose?” If the answer is no, the constitutional arrangement requires greater protection.

Constitutionalism must prevail over convenience.

I therefore remain unconvinced by the argument that increasing the retirement age of judges should be regarded simply as a rational administrative response to judicial delays. There may be a legitimate policy case for reviewing judicial retirement ages. There may even be a compelling case in the future for increasing them. But that does not make the present method constitutionally sound.

The central objection is not to the number 67. It is to the process, timing, institutional context, potential immediate beneficiaries, absence of sufficiently demonstrated necessity, and the precedent created for future governments. Nor should this issue be personalised around the present Chief Justice or any other individual judge. The constitutional principle is larger than any individual.

A judiciary must be independent not only from actual political interference but from reasonable perceptions of political influence.

That is why the concerns expressed by the BASL and by international legal organisations such as the Commonwealth Lawyers Association and LAWASIA deserve serious consideration rather than dismissal as partisan resistance.