By Vox Civis
The Government’s proposal to increase the retirement age of judges of the Supreme Court and Court of Appeal has evolved from a constitutional proposal into a full-blown institutional confrontation. It has evolved in to a catalyst in unifying an array of opposition parties that have spent years attacking one another, to instead collectively take aim at the government.
At the same time, the legal profession has mobilised and the Judicial Services Association (JSA) has unanimously rejected the government’s proposal out of hand. Senior lawyers, former judges, academics and international legal organisations have also expressed serious concern, while the Bar Association of Sri Lanka (BASL) has demanded structured consultation before any further action is taken.
Meanwhile, the evolving confrontation raised a hornet’s nest after the BASL was accused of political collaboration by a Government MP in Parliament on Friday (24). National People’s Power (NPP) MP, Asitha Niroshana Egoda Withanage accused the BASL President, Rajeev Amarasuriya of holding discussions with Opposition Leader Sajith Premadasa. The MP claimed that the BASL President had been offered a political candidacy in exchange for supporting the Opposition’s position.
Extraordinary response
The BASL responded with extraordinary force, describing the allegations as false, baseless and malicious. It accused the MP of abusing parliamentary privilege to make unfounded and defamatory claims designed to mislead the public. The association insisted that it had consistently defended democracy, judicial independence and human rights regardless of which government was in power. It declared that it does not, and will not, play politics. Then, the BASL went a step further: it challenged the MP to repeat the allegations outside Parliament, without the protection of parliamentary privilege, so that legal consequences could follow.
This, by no means can be considered as a minor exchange. It represents a dramatic escalation between the Government and the country’s principal legal organisation. The BASL is no longer merely expressing concern about a constitutional amendment; it is now publicly defending its institutional integrity against allegations from a Government MP. That, should cause serious concern to the Government.
The legal profession is not the country’s political Opposition. The Bar Association does not become an arm of the Opposition simply because it criticizes a government proposal. Nor does the Judicial Services Association become a political organisation because its members reject a proposed change to the retirement age of judges. The Government must understand that disagreement with the Government is not evidence of conspiracy. That is one of the most dangerous habits of political power: the belief that every critic must secretly belong to the enemy.
It is a habit that has damaged every government that has succumbed to it. And it brings Sri Lanka to the larger issue: what exactly does the NPP mean when it speaks of changing the system?
During its rise to power, the JVP/NPP repeatedly argued that winning political power was not the same as possessing state power. The distinction was politically significant. It suggested that entrenched institutions, bureaucracies and networks of influence could resist the will of an elected government. There was also political rhetoric about giving power to villages to resolve local problems, including questions relating to law and justice.
Dangerous objectives
Such statements may be interpreted in different ways. They may reflect a desire for decentralisation, greater public participation and a more responsive state. But they can also become dangerous if the underlying objective is to create parallel political structures that undermine independent constitutional institutions. Sri Lanka has seen this danger before.
The country has witnessed governments that attempted to place political loyalists throughout the State. It has seen the weakening of institutions in favour of personal loyalty. It has seen the judiciary attacked when its decisions became inconvenient. It has seen constitutional arrangements manipulated to serve political objectives. That is why this controversy cannot be examined in isolation.
The issue is not simply whether the retirement age of judges should be extended; it is the broader pattern of examining the NPP’s attitude towards independent institutions.
When a government seeks to influence the composition or tenure of a judiciary, when political leaders publicly comment on matters before the courts, when senior politicians appear to predict the outcome of investigations, when talk emerges of alternative courts or political control at village level, and when critics of judicial reform are immediately portrayed as political conspirators, the public has a right to ask whether the Government is beginning to move towards a model of political control rather than institutional governance.
The Government has the right to reject that interpretation. In fact, it should. But the answer cannot be to attack those raising the concern. The answer must be to remove the grounds for the concern.
This is where history becomes important. When J.R. Jayewardene commanded a five-sixths majority in Parliament, he possessed political power of a scale that no subsequent government could match. Yet when his administration sought to amend the Constitution to reinstate the defeated UNP MP for Kalawana, then Chief Justice Neville Samarakoon stood firm.
Unmistakable lesson
Despite being a personal friend of Jayewardene, Samarakoon ruled that the proposed constitutional amendment required not merely a two-thirds parliamentary majority but also approval through a public referendum. Jayewardene saw the writing on the wall and withdrew the amendment. The lesson was unmistakable. A government can possess overwhelming political power and still be restrained by institutions. That is what institutions are for. That is why they are supposed to be independent.
Decades later, the circumstances surrounding the impeachment of Chief Justice Shirani Bandaranayake under President Mahinda Rajapaksa’s administration, produced one of the most serious confrontations between the Executive and the Judiciary in Sri Lanka’s contemporary history. The legal fraternity and members of the public did not think twice about registering their protest and the ensuing events left a lasting wound in the country’s democratic history.
One of the first acts of President Maithripala Sirisena was to reinstate Bandaranayake for one symbolic day before her retirement. Even though that gesture could not undo the original injustice, it acknowledged the dignity of the office and the seriousness of the institutional damage. The lesson from the Bandaranayake episode is particularly relevant today. The judiciary must not be punished because it refuses to deliver the political outcome desired by the government of the day.
But the opposite danger is equally serious. The judiciary must not be placed in a position where judges believe their continuation in office depends upon pleasing the government of the day. One system removes judges because the Government does not like the decisions being delivered. The other creates an atmosphere in which judges may fear that their continued tenure depends upon political accommodation. Both are corrosive and dangerous.
Danger of perception
An independent judiciary must be free both from political punishment and political inducement. This is why the proposal to extend judicial retirement ages has created such deep concern. The Government may say it wants judges to remain because the country needs their experience. But if judges are made to believe that it is the Government of the day that decides their fate – whether they remain in office, or not – the independence of the institution stands compromised.
That is the danger of perception. A judge does not need to be directly threatened to feel institutional pressure. The possibility of political influence may be enough. This is why the argument that “we will not interfere with judges” is insufficient. The constitutional architecture is designed in such a way that judges cannot reasonably believe that their tenure depends upon the political preferences of the Executive. That is the standard that this Government and every other subsequent government must respect.
It is simply not enough to say that the proposed amendment is legal or that it could use its parliamentary majority to push it through parliament. The NPP must demonstrate that it is necessary, principled, transparent and institutionally justified. It is yet to do so. Instead, the country has witnessed the extraordinary spectacle of almost the entire justice sector expressing concern about the proposal.
The Judicial Services Association unanimously rejected it. The BASL has opposed proceeding without consultation. Former judges, senior lawyers and academics have raised objections. International organisations have called for the proposal to be withdrawn or subjected to comprehensive consultation. Even if every critic is wrong, the Government has a political responsibility to recognise that a constitutional amendment affecting the judiciary cannot be introduced against such a broad institutional consensus without creating enormous damage.
One way out
The Government still has a way out. The BASL has offered one. The Association has requested a committee comprising representatives of the Ministry, the Judiciary, the BASL and other relevant stakeholders to study the proposal comprehensively and submit an objective report before any further action is taken. That is a reasonable proposal. It gives the Government an opportunity to demonstrate that it is not seeking to impose a predetermined political outcome.
Such a course of action would allow the evidence to be examined and permit the actual problems facing the justice system to be identified. It would provide a mechanism to determine whether extending judicial tenure is genuinely necessary or whether the real solutions lie elsewhere. Most importantly, it would allow the Government to step back from the political brink. For its own sake, the Government should take that opportunity.
Instead, the situation appears to be moving towards a political showdown. The BASL has been attacked and it is clearly not taking it lightly. The collective Opposition coming together to oppose the proposal has also been met with aggression. The Government’s supporters rather than focusing on the issue at hand, seem to be more interested in attempting to discredit the Opposition’s new found unity. The NPP’s social media troll army appear to be portraying every critic as part of a political conspiracy. The die, it seems, is being cast.
There is something deeply ironic about the NPP’s apparent outrage at the Opposition uniting against it. The JVP, the principal political force within the NPP, spent decades positioning itself as the uncompromising opposition to successive governments. It participated in alliances and political arrangements at various points in its journey into mainstream politics, including its alliances with Chandrika Kumaratunga’s administration in 1994, its support for Mahinda Rajapaksa’s presidential campaign in 2005, Sarath Fonseka’s campaign in 2010, and Maithripala Sirisena’s campaign in 2015.
Hollow argument
The JVP’s history is therefore not one of permanent political isolation from every government or political force. It has, over the years, opposed governments, supported governments, entered alliances and negotiated political arrangements when it believed circumstances required it. The argument that opposition parties are somehow illegitimate because they have now united against the Government is therefore politically hollow.
Why should parties that disagree on almost everything not unite to defend an institution they believe is under threat? Why should the legal profession not speak collectively when the independence of the judiciary is at stake? Why should the public be expected to remain silent because the people who are now opposing the proposal once held political power themselves?
That is not an argument; it is more an attempt to change the subject. The Government should instead answer the substantive question: why is this amendment necessary now? And why, when the proposal has generated unprecedented opposition across the justice sector, is the Government still allowing the confrontation to escalate? The latest developments suggest that the Government, for reasons best known to it, has chosen confrontation.
But there is a problem with this strategy. The Government has nothing to gain from a confrontation with the legal profession. If it backs down, its critics will say it has been forced to retreat. If it proceeds, it risks a confrontation with the Judiciary, the legal profession, civil society, religious leaders and international legal organisations.
If it takes up the political challenge, it will be required to prove that the amendment is genuinely necessary and that the Government is not attempting to influence the judiciary. If the legal profession takes up the challenge, it will be required to demonstrate that its opposition is based on principle rather than political alignment.
The Government’s greatest asset remains the enormous public mandate it received in November 2024 when it won 159 seats in Parliament. However, just six months later at the local government election the NPP received two million less votes. What that showed was that a mandate is not preserved by fighting every critic. It is preserved by demonstrating that power can be exercised with restraint.
Desire for real change
The NPP was elected because Sri Lankans wanted to break with the old political culture. They wanted an end to the politics of impunity. They wanted institutions to work. They wanted the law to apply equally. They wanted the State to serve the public rather than political parties.
A democracy is not a system in which one party wins an election and then everyone else is expected to fall silent. A democracy is a system in which power is divided, challenged and restrained. It is for this reason that the Government must tread carefully. The temptation of every new government is to believe that the old system was broken because it was controlled by the wrong people. But the real lesson is that systems become broken when any group of people believes that the system should be controlled by them.
That is how ‘political reform’ ends up becoming political capture. That is how the promise to change the system would likely end up becoming an attempt to control the State: by gradually beginning to replace institutions with loyalists.
And that is exactly how democracies begin to erode – not necessarily with tanks in the streets or the formal abolition of elections, but through the slow politicisation of the institutions that are supposed to remain independent.
Sri Lanka has experienced this process before and it has paid an enormous price. That is why it should not repeat the experiment. The Government should therefore withdraw the proposal, or at the very least, suspend further action and accept the BASL’s call for comprehensive consultation.
Constitutional amendments affecting the judiciary should never be treated as ordinary administrative adjustments. They are not the same as changing the retirement age of a public servant or modifying the terms of a government department. The judiciary is a constitutional institution.
Control is not change
The NPP must realise that people did not vote for the destruction of the very institutional safeguards that had prevented previous governments from becoming all-powerful. Yes, they voted for change, but change is not the same as control. The judiciary is not the property of a government, an opposition, a political party or a President. It belongs to the Republic.
Sri Lanka has three constitutional pillars: the Executive, the Legislature and the Judiciary. The Executive governs, Parliament legislates, and the Judiciary interprets the law and acts as a constitutional check on the exercise of power. The judiciary is therefore not supposed to be popular with governments; it is supposed to be independent of them.
Most importantly, that independence must be visible to the public. If citizens believe that judges can be influenced, rewarded, punished or retained according to the political preferences of those in power, the constitutional system is seriously damaged. In the words of Lord Hewart, the former Lord Chief Justice of England: “Justice must not only be done, but must also be seen to be done.” That is what Sri Lanka now risks abandoning.
The NPP would do well to understand that the independence of the Judiciary is not a favour granted by the Government, and that it is a constitutional principle that exists to protect the people from the Government.
The Government of the day is temporary, but the State is permanent. The Presidency is temporary, but the Constitution is supposed to endure. Likewise, political parties rise and fall, but institutions must survive them.
Sri Lanka has seen powerful governments attempt to bend constitutional institutions to their will. It has seen judicial independence tested by political pressure. It has seen the consequences when judges are removed because their decisions become inconvenient. It has also seen the consequences when governments attempt to shape institutions around political requirements. The country cannot afford another chapter in that history.
The NPP has been given an extraordinary opportunity to demonstrate that it truly represents a new political culture. It can still show that its promise of system change means strengthening institutions rather than capturing them. It can still prove that a government with a powerful mandate can also exercise powerful restraint.
It can still avoid a constitutional confrontation that risks damaging the very institution that has survived Sri Lanka’s most difficult political moments. But time is running out.
Disclaimer: The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication.
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