By Rajan Philips –

The NPP government has walked into a judicial storm of its own making. It seems determined to bulldoze its way through the storm, use its two-thirds majority in parliament to amend the constitution, and extend by two years the retirement age of the sitting and future Supreme Court and Court of Appeal judges, as well as that of all lower court judges. The idea of extending the retirement age of senior court judges is an ill-advised short term political fix to a problem that the government has not clearly articulated so far. 

Where the idea originated is an open question. There have been suggestions that it may have come from within the upper echelons of the judiciary itself. It may or may not be true, but the government has no credibility on the matter to satisfactorily deny it. The damage is done, no matter who first bit the forbidden fruit. 

From everything one can see, the Minister of Justice Harshana Nanayakkara comes across more as a lawyer carrying the President’s brief in public rather than the ministerial adviser to whom the President can turn for confidential advice and expert opinion. I am not suggesting that the Minister should resign over this, even as a matter of principle. Rather, I would urge him to stay in and keep representing in cabinet and within the earshot of the President, what everyone else is professionally saying outside the government. 

Indeed, as has been reported following the Minister’s meeting with BASL, the Minister has undertaken to personally convey to the President the professional concerns he heard from BASL. The Minister is a member of the bar and he may not be in disagreement with what he is hearing from his professional colleagues, not to mention the rest of the political class. And the BASL would do well to keep this ministerial medium open without breaking it  

The way out for the government is to separate professional opinion from political noise. That is what Lal Wijenayake has done both within the NPP and outside the organization. Mr. Wijenayake is not only a respected Senior Lawyer, but he is also the most sincere and selfless stalwart of the NPP that one can think of, who does not have JVP roots. Many in the JVP leadership like him and respect him. They should listen to him as well, especially on this matter, for there is no one who can offer the NPP a superior opinion, politically and legally, than Lal Wijeynayake. 

Truth be told Wijeynayake is a Sama Samajist, and true to form he is not for picking judges from some “witches’ cauldron.” That is how Dr. Colvin R de Silva decried President Jayewardene’s mode of appointing judges in one of his very first acts as President under the then new 1978 Constitution. The NPP and President AKD are supposed to be different from all their predecessors.

Judicious Way Out

A judicious way out of the mess has been suggested by Dr. Nihal Jayawickrama. That is for President Dissanayake “to let the present Chief Justice retire on the due date, and then find an individual acceptable to him from among the present Judges or from the Bar or from elsewhere, to serve as Chief Justice, instead of tinkering with the integrity of the Constitution?”

The President’s selection is of course subject to approval by the Constitutional Council, the trade-off creation of the 20^th Amendment to curtail presidential powers without abolishing the executive presidency. I do not know if the President can submit a list of names from which the Council can make a short list of candidates and the President can make the final selection from the short list. That will avoid the silly process of the President sending one name at a time after each rejection by the Council. That was the procession for the selection of the Auditor General that kept everyone confused.    

By taking the approach suggested by Dr. Jayawickrama, the President need not be constrained by seniority and does not have to select someone who will have to retire in less than two years. There is no constitutional requirement for appointment by seniority and there should not be for chief justices and supreme court justices. Of course, seniority should be the criterion when two or more candidates are equally qualified for the job in every other respect. 

Seniority was not always the criterion in the 20^th century and appointment by seniority would seem to have become entrenched in the 21^st century. And this is more likely due to political expediency and is not based on any objective consideration. The procession of senior judges becoming Chief Justices and retiring within two years has done little good to the courts and the system of justice. The Supreme Court should not be a promotion lounge for departing justices. The expectation of appointment on seniority is hardly conducive to judicial independence. It gets worse when a President gets to appoint two or more chief justices in one presidential term.  

President Dissanayake could break with this tradition, extend the pool of choice and select someone young enough to have a tenure of five to ten years. Of course, the candidate should be better than all the others in terms of legal learning and judicial competence. The current Chief Justice is due to retire next year and there is enough time for the President with the support of the Minister of Justice to put in place a process for selecting the successor. This could also be precedent setting.

The President and the government could adopt the practice, which is common in a number of countries, of setting up a panel of eminent lawyers and academics to make recommendations to the President. The panel could establish rigorous selection criteria, and based on those criteria select a long list of potential candidates from which the President could select a short list for further pruning and approval by the Constitutional Council before the final selection. The same panel could help the President fill up the current vacancies and establish a process that would serve the country well.  

Cautionary Notes

It is more than likely that the NPP government will spurn these and other sober, second-thought suggestions and bullishly take the majoritarian route and amend the constitution to extend the retirement age of judges. Even so, the government may be well advised to be wary of two potential pitfalls. First, the amendment process. 

The amendment clearly does not require a referendum. But that is not going to stop the usual interveners petitioning the Supreme Court hoping for a referendum ruling. That is not likely to happen but there will be loud denunciations of the judges hearing the case instead of recusing themselves because of a palpable conflict of interest. The government can handle all the political noise.

But it may not have thought of the likelihood of some judicial noise emanating from the court itself.  In a potential hearing of the constitutionality of the amendment, one or more judges while ruling that a referendum is not required may use the opportunity to make an obiter statement from the bench that they will not be availing themselves of the extension of their retirement age and that they will be retiring when they turn 65. They may even make that statement to explain why they are not recusing themselves from the case. 

It is also possible that some of the Supreme Court judges, as well as some among the Court of Appeal judges, may choose to publicly declare that they will be retiring at 65 or 63, regardless of the extension. Others may just choose to retire at 65/63 disregarding the extension and without publicly fussing about it. If any of the Supreme Court judges, or the Court of Appeal judges, were to disregard the extension and retire at 65/63 with or without a public announcement, the government will end up with a constitutional egg on its face. Worse, it will make life miserable for the judges who opt to take advantage of the retirement extension, and some of them may decide to leave earlier than they were planning to. 

The second cautionary note is about the political fallout. Given the NPP’s majority in parliament, the President’s popularity in the country, and the sterility of the opposition, the government is not going to suffer any political setback immediately even if the government were to proceed with amending the constitution and all the Supreme Court and Court of Appeal judges choose to avail themselves of retirement extension. 

However, the whole episode will leave a bad taste in the political mouths of many, including many NPP sympathisers with no JVP roots. Little bad tastes get bitter as the government ages and, going by past experience, become a significant electoral liability in the end. The NPP government can ignore this only at its peril.

On the other hand, if one or more of the Supreme Court and Court of Appeal judges were to choose to take their retirement at 65 or 63, that will create a major crisis on the bench and the political fallout will be more immediate and more lasting. The present opposition is not going to make any hay out of this but that is not NPP’s concern. But the people will start looking for alternatives and the NPP would have lost its overall appeal and the aura of authenticity. 

If, however, the government were to follow the sagacious advice of Nihal Jayawickrama which I have tried to politically elaborate in this article, the government would be able to pull out a meaningful victory from the jaws of judicial embarrassment. It would also set the stage for gradually reforming the administration of justice besides satisfying everyone who wants this government to succeed.