By Nihal Jayawickrama –

The Government has announced its intention to introduce a Bill to amend the Constitution to extend the retiring age of the Judges of the Supreme Court and the Court of Appeal by two years to 67 and 65 years respectively. While it would be quite legitimate to commence a conversation on the retiring age of Judges, the proper stage to do so is when a new Constitution is being drafted. An ad hoc mid-stream peremptory announcement that it would extend judicial tenure, will inevitably be viewed as an attempt by the Government to retain the services of one or more Judges whose retirement is due shortly. Such a perception will cause irreparable harm to the credibility of the judiciary.

No valid reason to change retiring age

There appears to be no immediate justification to increase the constitutionally mandated retiring age of 65 years of Judges of the Supreme Court. It is the same in many Asian countries – India, Pakistan, Nepal, Bhutan, Singapore, and 66 years in Malaysia.  It makes little sense to argue that in the United Kingdom, where until recently the House of Lords was its highest court, Judges serve until the age of 75; or that in the United States they hold office for life. In many of the States in the US, judges are elected. Even the appointment of Judges to the Supreme Court is a political exercise, where the President recommends and the Senate confirms or rejects by a majority vote. In several South and Central American countries, the Chief Justice is elected by the Judges themselves for a specified rotating period.  As elsewhere, our system is the result of our own constitutional evolution, and it would be foolish to attempt to replicate others’.

No support from serving Judges

It has been reported that the Judicial Officers Association has strenuously objected to any increase in their retiring age of 60. After over 25 or 30 years of wandering from one judicial division to another, they probably wish to settle down and enjoy family life. It is not known whether the Judges of the Supreme Court had requested an extension of their tenure. It seems unlikely that they had, because on retirement the extremely lucrative world of arbitration lies at their feet, in addition to receiving 90% of their salary in the form of a monthly pension.  There is now a further incentive provided by a recent judgment of the Supreme Court itself that if a retiring Judge chooses to draw a commuted pension on retirement; i.e., an advance payment of a sum equivalent to, say, 50% of the monthly pension due to him in the first 24 months following retirement, that advance payment cannot thereafter be recovered by the government from his monthly pension because, according to that judgment, Article 108 of the Constitution states that the pension entitlement of a Supreme Court Judge shall not be reduced. That is, after taking a substantial portion of his future pension in advance, the State is nevertheless required to pay him the full pension thereafter; a loan which a retiring Judge is not required to repay; a privilege not accorded to judges of lesser rank or other members of the public service.

Judicial tenure to be determined in new Constitution

It is a fundamental tenet of judicial independence that a judge of the highest court should have a constitutionally guaranteed tenure. It could be for life, until a mandatory retirement age, or the expiry of a fixed term of office. That is a guarantee of judicial independence.  The retirement age of Judges of the Supreme Court has always been determined at the stage of drafting a new Constitution.  The 1947 Constitution of Ceylon specified that the retirement age of Judges of the Supreme Court shall be 62 years, but that the Governor-General “may permit a Judge who has reached the age of 62 years to continue in office for a period not exceeding 12 months”.  Neither Sir Ivor Jennings who prepared the Ministers’ Draft, nor B.P. Peiris, the draftsman of the 1947 Constitution, has taken responsibility for that extension provision. It is, therefore, likely that it was inserted by the British Government, having regard to the interests of members of the Colonial Judicial Service who were serving on the Supreme Court at the time when that Constitution came into force.  

When the 1972 Constitution was being drafted, it was decided to omit that discretionary power of the government to grant selective extensions of service to judges of their choice, although I am not aware of any such extension having ever been granted. Instead, the retirement age of Judges of the Supreme Court was fixed at 63 years. 

The 1978 Constitution abolished the Supreme Court, replaced it with a new Supreme Court and a Court of Appeal, and from what Dr. Colvin R. de Silva has described as “the witches’ cauldron”, President Jayewardena picked out eleven Judges, distributed them to the two appellate courts, without regard to seniority, experience or age, excluded eight Judges, and then increased the retirement age of the chosen ones to 65 years and 63 years respectively.  That is the position today.

Freezing the judicial sector

One consequence of the government’s proposed action is to freeze the judicial sector and thereby prevent any upward movement for judges of lower courts. Moreover, four vacancies in the Supreme Court and four vacancies in the Court of Appeal, have not been filled for several months.  In the past, whenever a vacancy occurred, it was the invariable practice to fill that vacancy on the next day. In the Ministry of Justice, where I served for seven years, we would determine well in advance who would fill a vacancy immediately it occurs.  The new Judge will be sworn in on the day following the retirement of his predecessor.  The legal profession has never been as large in number as it is today. Consequently, the field of selection of new judges is enormous. To extend the tenure of serving judges is not only to deny the legitimate expectation of many for promotion in service, but also to frustrate the aspirations of hundreds of young lawyers who seek a career in judicial service. 

Litigation expedited by reforming procedure

The government has expressed a bizarre argument that extending the tenure of serving judges is necessary to reduce the enormous backlog of cases, many of which had been instituted more than 25 or 30 years ago.  That is a spurious argument, similar to that which I encountered over 50 years ago before we introduced the Administration of Justice Laws of 1973 and 1975.  

Litigation is not expedited by establishing more courts and appointing more judges. Litigation is expedited by reforming the procedure.  Reference to a Conciliation Board before proceeding to a court; evidence through affidavits instead of by examination-in-chief; a pre-trial conference; hearings from day-to-day with no postponements except in the event of a family bereavement, written submissions in the appellate courts and oral arguments limited to 30 minutes (as is the procedure in the United States Supreme Court), and the listing of appeals in the order in which they had been filed, were some of the procedural reforms which we introduced to expedite civil litigation. Similarly, the abolition of non-summary proceedings was just one of many procedural reforms in criminal cases.  Research conducted by Dr. Neelan Tiruchelvam revealed that in three years, 53% of civil disputes had been resolved in Conciliation Boards, without the appearance of lawyers, and therefore did not reach the courts.

Discriminatory treatment of two Chief Justices

During both the presidential and general elections, the NPP promised to abolish the executive presidency and to restore parliamentary government under a new electoral system.  That promise remains unfulfilled.  On the other hand, if it was intended to extend the tenure of Judges of the appellate courts, why was a Bill not introduced for that purpose before eight Judges retired a few months ago?  If the intention was to extend the tenure of the Chief Justice, why was that benefit not extended to Chief Justice Murdu Fernando who was appointed by, and retired during, this government?  A constitutional amendment now would lead one irresistibly to the conclusion that what the government seeks is to ensure that the present Chief Justice continues in office for two more years following the constitutionally mandated date of his retirement.  In my view, that would be a blatant interference with the administration of justice in this country.  The Bangalore Principles of Judicial Conduct, endorsed by the UN General Assembly, adopted by judiciaries on all the continents but ignored by the Sri Lankan judiciary, states that the discretional recognition of a judge’s judicial work by the executive jeopardizes its independence.

An alternative option

Finally, I wish to conclude by offering an alternative option to the government which I would ordinarily not support.  Some previous governments have succeeded in ignoring sound constitutional practice and securing the appointment as Chief Justice of candidates of their choice. For example, in 1955, Sir John Kotelawela secured the premature retirement of Chief Justice Sir Alan Rose, six years before the due date, to enable him to appoint Attorney-General Basnayake to that office. In 1974, Victor Tennekoon was appointed Chief Justice superseding four Judges who were senior to him in what Justice Minister Felix R. Dias Bandaranaike described to me as “a Kandyan coup”.  In 1977, President Jayewardena appointed his own personal legal adviser, Neville Samarakone as Chief Justice, ignoring the claim of Justice Samarawickrema who had by then served eleven years in the Supreme Court.  In 1988, President Jayewardena again ignored the most senior Judge, Justice Wanasundera, and appointed Justice Parinda Ranasinghe as Chief Justice.  In 1999, President Kumaratunge appointed Attorney-General Sarath Silva as Chief Justice, superseding five Judges who were senior to him when he had previously served four months on the Court.  In 2013, President Rajapakse purported to appoint the legal adviser to the Cabinet, Mohan Peiris, as Chief Justice following the disputed removal of the incumbent, Shirani Bandaranayake, and ignoring the most senior remaining member on the Court.  That leaves me with the question – would it not be a better option if the President were 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?

*Dr. Nihal Jayawickrama, a former Permanent Secretary to the Ministry of Justice, is the Rapporteur of the UN sponsored Judicial Integrity Group of Chief Justices which drafted the Bangalore Principles of Judicial Conduct and its 175-page Commentary, both of which have since been endorsed by the United Nations General Assembly and published in all six UN languages.