Statement on the proposed extension of the retirement age of Judges of the Supreme Court and Court of Appeal

The Lawyers’ Collective expresses its concern about a proposed move by the government to extend the retirement age of judges of the Supreme Court and Court of Appeal. The Lawyers’ Collective fully endorses the statement issued by the Bar Association of Sri Lanka expressing its serious concern about this course of action. The retirement age of senior judges is presently fixed by Article 107(5) of the Constitution, which means any change thereto would require a constitutional amendment bill. Public statements have emerged that such a bill is being prepared by the Legal Draftsman’s Department. If this reporting is accurate and the government is indeed considering a constitutional amendment to effect this change, it would run contrary to several key pillars of the ‘system change’ and change in governance culture promised by the NPP government, and pose a serious threat to the independence of the judiciary.

Threat to the independence of the judiciary

Of particular concern in relation to the unfolding events is the possibility that this amendment will be designed to apply to sitting judges on the superior courts. If that is the case, it will be a clear example of ‘court-packing’, as the government will effectively be moving to ‘lock in’ the present composition of the court, enabling sitting judges to serve a longer term. Legislation altering judicial tenure is widely discussed in comparative constitutional law scholarship and is recognised as a method of court capture. In short, extending the retirement age of sitting judges would be a clear inducement, benefit or advantage conferred on such judges by the government (where they would otherwise retire at the age of 65 or 63 respectively) and is therefore a blatant violation of the independence of the judiciary.

The independence of the judiciary is a core constitutional principle, finding expression in the preamble to the Constitution, and in Chapter XV under a dedicated heading titled ‘Independence of the Judiciary.’ The Twenty-First Amendment to the Constitution further strengthened the independence of the superior courts by re-introducing the Constitutional Council mechanism, through which judicial nominees to these courts are scrutinised prior to approval.

In Pathirathne v Abeywardena (S.C. F.R. No. 35/2024, Supreme Court Minutes of 12^th December 2024), the Supreme Court commented on the important role the Council played in securing the independence of the judiciary, and further stated that “…even a suspicion based on some evidence would be enough to taint the public trust reposed in a Judge.” This demonstrates that judges must not only be independent and beyond reproach, but must be seen to be independent and beyond public reproach. If the government moves to extend the term of sitting judges of the superior courts, it is inevitable that the public perception will be that these judges have the government’s approval or endorsement, and that the government wants them to continue in office for a further period. Any decision the court takes thereafter will be tainted by the perception that its judges are beholden or partial to the present government and its interests. In the above case, the court quoted with approval the following passage from Justice A.R.B. Amerasinghe’s book, ‘Judicial Conduct Ethics and Responsibilities’,

“…the allegations, have not been against the judiciary as a whole or even against large numbers of judges, although, admittedly, ‘when public confidence in in one judge is shaken, public confidence in the judiciary as a whole is affected. That is the other side of the judicial independence coin.”

The court went on to comment, “The above paragraphs clearly show the nexus between public confidence in the judiciary and the enforceability of its Judgments which underscores the importance of maintaining the judicial integrity all times at high levels.”

Our observations on the impact of the proposed amendment are in no way an indictment on the integrity or reputation of the court’s current judges, but is an inescapable inference about how the court will be perceived. A court that is seen to be partial in this way will struggle to command public faith and confidence. In the Pathirathne case, the court also cited with approval a passage from Stephen Parker, former Vice-Chancellor of the University of Canberra who commented,

Courts largely depend upon public confidence in the law and its processes for compliance with their decisions: As soon as the independence of judges and magistrates come into question, so too does the impartiality of their decisions. Crumbling confidence in the courts could have untold consequences for our sense of security and ultimately lead to the ugliest of situations. Courts, it has been said, are a civilised society’s substitute for vengeance.

 Public faith and confidence in the judiciary is essential to the independence and effectiveness of the judicial branch. Without it, the judiciary loses a key source of its moral and persuasive authority.

An independent judiciary is also an essential aspect of the People’s sovereignty, as recognised by the Supreme Court in the Special Determination on the Industrial Disputes (Special Provisions) Bill [S.C. (S.D.) No. 30/2022] where the court stated,

In the end, the full implementation of all rights of the people depends upon the proper administration of justice by a competent, independent and impartial judiciary by upholding the rule of law. In this context, it is important to note that the SVASTI of the Constitution assures to all people the independence of the judiciary. Hence sovereignty in Article 3 of the Constitution must be read to include the right to an independent judiciary. (Emphasis added)

In ‘Reimagining justice: confronting contemporary challenges to the independence of judges and lawyers’ (Report of the Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite (A/HRC/53/31, April 2023)), the Special Rapporteur noted:

19. Situations of concern to the Special Rapporteur may include new limits on courts’ jurisdiction to review the legality of executive or parliamentary action or reforms to the nature or composition of courts – particularly high courts – that effectively diminish their independence and ability to remedy human rights violations. These may include politically strategic reductions in the size of the highest court, arbitrary removal of judges or reductions in their terms, or the subjection of judges to early retirement in a manner that politicizes their role. Alternatively, such situations may include the appointment or retention of judges seen as favourable to those in other branches of government through a politicized expansion of the size of the highest court, the arbitrary abolishment of a retirement age or extension of terms, or the irregular creation of extraordinary chambers… (Emphasis added)

In a subsequent report, ‘Safeguarding the independence of judicial systems in the face of contemporary challenges to democracy’ (A/HRC/56/62, June 2024), the Special Rapporteur noted,

25. The second type of reform that increases the risk of court capture through changing the composition of the judiciary is the politicized creation of new judicial vacancies that allow the political branches to appoint judges seen as more loyal to their aims, either by expanding the size or number of courts or by removing existing judges. Examples include attempts to remove or impeach sitting judges, laws that make it easier for the political branch to remove judges, the refusal of new administrations to recognize judges appointed by previous administrations and the implementation of new laws that apply a novel or lowered compulsory retirement age for sitting judges. In Hungary, legislation that lowered the mandatory retirement age of judges from 70 to 62 years of age led to the early retirement of more than 200 judges. The executive branch may also purport to impose a judicial term limit or to alter the length of service of sitting judges… (Emphasis added)

Therefore, the Lawyers’ Collective strongly condemns any attempt to alter the retirement age of judges of the Supreme Court and Court of Appeal.

Lack of public consultation and discussion

Quite apart from the substance of the proposed amendment, the process by which it is being drafted raises additional concerns. It runs completely contrary to the principles of participatory governance and ‘public discourse’ promised in the ruling coalition’s election manifesto. The government has attempted to conceal the proposed change, as evidenced by the Minister of Justice avoiding a question raised about this issue. Despite this, rumors of this change have triggered public discussion in the press.

The secrecy in which such a significant constitutional amendment is being drafted is reminiscent of the provisions in the Twentieth Amendment to the Constitution which increased the number of judges on both the Supreme Court and Court of Appeal. This provision was never discussed publicly, nor put before the Supreme Court when the amendment bill was challenged, but was simply moved as a committee-stage amendment. The continuation of these secretive tactics of legislative drafting and constitutional amendment do not represent the ‘system change’ or change of political culture promised by the ruling government when it was elected.

Public consultation is essential to ensure that this amendment does not have adverse knock-on effects on the rest of the public service. We note that when news of this change became public, concerns were raised by other professionals in the public sector, including government doctors. The government would also have to consider amending the retirement age of career judges, to ensure that they have a clear path to upward advancement within the judiciary. Furthermore, any change to the retirement age of judges of the superior courts should go hand in hand with wider discussion about the composition of the court and the sources from which its judges are drawn. Under the previous Constitutional Council (2023-2026), draft rules were circulated (though later withdrawn) which suggested that the Council would consider legal academics and senior practicing lawyers from the private bar in filling vacancies on the court. Such an approach is adopted in apex courts in other jurisdictions and may be desirable for Sri Lanka. Consulting the public and other stakeholders will ensure that any constitutional amendment will serve to enhance the capacities of the court and further the administration of justice, rather than merely permitting judges to serve longer.

Constitutional tinkering

This proposed amendment also continues the practice of piecemeal constitutional reform by the government of the day to suit its political objectives. The Lawyers’ Collective recalls that the NPP’s election manifesto promised a new constitution. However, despite having the adequate parliamentary majority to pass constitutional amendments (including a new Constitution), the government has shown no interest in delivering on this promise. This makes it more concerning why there is now motivation to adopt a limited constitutional amendment affecting the judicial branch. This suggests bad faith on the part of the government, when there was no discussion about such an amendment during the election, nor upon entering government. To the contrary, as noted above, there has been a deliberate attempt to conceal this amendment from the public.

The Lawyers’ Collective therefore calls on the President, Prime Minister, Minister of Justice and the senior leadership of the government to forthwith cease all efforts to develop a constitutional amendment bill to extend the retirement age of judges of the Supreme Court and Court of Appeal.

On behalf of the Lawyers’ Collective,

1. Geoffrey Alagaratnam, President’s Counsel
2. T. Jayanaga, President’s Counsel
3. M. Zuhair, President’s Counsel
4. Anura Meddegoda, President’s Counsel
5. A. Sumanthiran, President’s Counsel
6. Nalin Dissanayake, President’s Counsel
7. Professor Savitri Goonesekere, Attorney-at-Law
8. Professor Camena Guneratne, Attorney-at-Law
9. Professor Deepika Udagama
10. Fr. Noel Dias, Attorney-at-Law
11. Sandamal Rajapakshe, Attorney-at-Law
12. Lakshan Dias, Attorney-at-Law
13. Srinath Perera, Attorney-at-Law
14. Ermiza Tegal, Attorney-at-Law
15. H.A. Mohamed, Attorney-at-Law
16. W. Janaranjana, Attorney-at-Law
17. Sanjayan Rajasingham, Attorney-at-Law
18. Mark Schubert, Attorney-at-Law
19. Sanjit Dias, Attorney-at-Law