By Vox Civis
There is a curious argument gaining currency in Sri Lanka that opposition to the proposed extension of the retirement age of judges of the superior courts is merely a political campaign orchestrated by the Opposition. It is an argument that is convenient, perhaps, but profoundly dangerous.
It was apparently in that spirit that an NPP Parliamentarian recently launched an ugly verbal attack on the President of the Bar Association of Sri Lanka (BASL), seemingly suggesting that criticism of the Government’s proposal is politically motivated and therefore devoid of merit.
But, while the Government and its supporters are entitled to their opinions, what they are not entitled to do is to transform disagreement with government policy into political disloyalty, or to suggest that those who defend constitutional safeguards must first pass a political loyalty test.
The BASL’s objection is important because it is not an objection to the concept of changing judicial retirement ages in principle; its concern is about timing, method and consequence. The distinction matters enormously.
There is nothing inherently objectionable about a democratic Parliament deciding – after proper consultation and for compelling reasons – that the retirement age of judges should be changed. Indeed, if the Government were proposing that a new retirement age should apply prospectively, from a clearly specified future date, there would be far less reason for suspicion. But when an established constitutional rule is altered in a manner that can immediately benefit particular individuals already occupying judicial office, the question that inevitably arises is: why now? Why the indecent rush?
‘Majority’ is not ‘ownership’
That is the question the Government should answer rather than attack those asking it. The current constitutional position fixes the retirement age at 65 for Supreme Court judges and 63 for Court of Appeal judges. The Government’s proposal is to increase these ages by two years. The Cabinet has now approved the proposal, with the measure requiring constitutional amendment.
The Government says the judiciary faces serious delays and a shortage of judges. That is a legitimate problem. But a legitimate problem does not automatically validate every proposed solution to it. Nor does a parliamentary majority confer constitutional ownership. That is the fundamental point that appears to be getting lost in the increasingly heated political debate.
In a democracy, judges are not, and should never be considered as employees of the Government. They are state officials whose independence is constitutionally ensured, because they may one day be required to restrain the Government itself. Their constitutional security is therefore not a privilege granted to judges; it is a protection afforded to citizens.
While a parliamentary majority is powerful, it is not sovereign over the Constitution. The Constitution belongs to the people, not to the government of the day. It is this basic principle that most governments chose to forget once in office. And, it is this distinction that becomes particularly important when discussing judicial tenure.
The danger is not necessarily that the present Government maybe intending to manipulate the judiciary, the bigger and more serious danger is that it may create a constitutional mechanism which a future Government can effortlessly manipulate for that very purpose.
Imagine, for a moment, a future administration deciding that a particular group of judges is inconvenient. It could proceed to reduce the retirement age. It could argue that it is merely correcting an earlier mistake. It could invoke the very same precedent being created today. Judges who were expected to remain in office could suddenly find themselves approaching retirement.
Dangerous possibilities
Or imagine the opposite. A future government could increase the retirement age again because it wants particular judges to remain in office while politically sensitive cases are before the courts. The possibilities are too dangerous even to merely contemplate, as the constitutional principle would then have been transformed into a political instrument.
That is how institutions entrusted with safeguarding the sovereign – the people – are slowly and systematically weakened, in order to suit political necessities of the parties in power. They are not carried out through one spectacular act of authoritarianism, but through seemingly modest changes which establish precedents that can subsequently be exploited.
This is why the debate cannot be reduced to whether two additional years of judicial service are objectively good or bad. The question is whether the tenure of constitutional judges should be capable of being adjusted in circumstances where the immediate beneficiaries are identifiable individuals. Once that door is opened, every future government inherits the key.
And governments change. The NPP of today will not be the NPP of tomorrow. The Opposition of today may be the Government of tomorrow. Those who applaud the Government’s ability to alter institutional arrangements today may discover, years later, that the same precedent can, and may well be used against them.
This is the great irony of constitutional politics. Political parties frequently support institutional changes when they benefit from them and condemn those same changes when they become victims of them. Sri Lanka has suffered enough from this despicable habit. The judiciary should not become another arena in which the principle of ‘what is good for us today’ substitutes for the more difficult question of ‘what is safe for the Republic tomorrow.’
The timing of the proposed amendment therefore matters immensely. The BASL has already expressed grave concern that the proposal could undermine public confidence in judicial independence and the rule of law. And they are probably right. It has specifically argued that the existing retirement ages should not be altered arbitrarily. The Judicial Service Association has also opposed the proposal. At a special meeting, its members reportedly rejected the Government’s proposal unanimously among those present.
These are not insignificant voices that can simply be dismissed as extensions of the political Opposition. Nor should professional criticism be answered with political abuse. If the Government believes its proposal is constitutionally sound, institutionally necessary and entirely unrelated to the tenure of particular judges, then it should have no difficulty demonstrating that through transparent reasoning. Indeed, the easiest way to remove suspicion would be to design the amendment prospectively. That would settle much of the controversy.
Inevitable suspicion
But when legislation is hurried through while sitting judges may directly benefit from it, suspicion is inevitable. And in matters concerning judicial independence, perception is not a cosmetic consideration. Perception is part of institutional legitimacy.
This brings us to the extraordinary developments surrounding the Easter Sunday case.
On Friday (31), a three-member High Court bench convicted former Inspector General of Police (IGP) Pujith Jayasundara and former Defence Ministry Secretary Hemasiri Fernando over criminal negligence relating to the 2019 Easter Sunday attacks and imposed the death penalty by a majority decision. One judge dissented and favoured acquittal. The defendants have the right of appeal. Sri Lanka, meanwhile, has maintained a moratorium on executions since 1976.
Nothing in the present controversy should be interpreted as an argument that judges should be shielded from accountability. Quite the contrary. If public officials fail catastrophically in their constitutional and statutory responsibilities, the law must take its course.
But the judgment has inevitably revived a broader public question: has accountability been distributed evenly across the architecture of responsibility surrounding the Easter Sunday catastrophe? That question is not the same as questioning the court’s verdict. It is a question about the larger chain of institutional responsibility.
For all intents and purposes, Jayasundara was the IGP at the time. But questions have long surrounded the functionality of the critically important national security apparatus, most notably the functioning of the National Security Council, the flow of intelligence and the responsibilities of political and intelligence authorities prior to the attacks. His seemingly premeditated and deliberate exclusion from important security discussions, especially those leading up to the attacks, has been raised in the public debate surrounding the tragedy and also well documented.
The disturbing question therefore is whether responsibility for a systemic failure can ever be adequately understood by concentrating punishment on one or two individuals occupying particular offices. The public is entitled to ask what happened to the intelligence that was received, who knew what and when, who was responsible for acting upon it, and whether those who possessed critical information discharged their responsibilities.
Different consequences
The public is also entitled to ask why some individuals appear to have faced dramatically different consequences from others who occupied positions of significant responsibility at the time. Those questions must not be dismissed as attacks on the judiciary, for they are essentially questions about the completeness and credibility of accountability. In the current context, that distinction is crucial.
The legitimacy of justice depends not merely on the severity of punishment; it depends on the public belief that the law has been applied impartially. A death sentence imposed on two senior officials may satisfy one dimension of accountability. But if citizens believe that other actors who exercised influence over the security apparatus escaped scrutiny, the resulting perception may be that justice has been selective rather than comprehensive.
Whether that perception is ultimately justified is for the evidence and the appellate process to determine, but governments should understand something fundamental: perception is everything when institutional trust is already fragile.
This is precisely why judicial independence matters.
While a judiciary must be capable of deciding cases without fear of political consequences, it must also be protected from the perception that its composition, tenure or institutional structure can be adjusted to suit political circumstances. The danger of weaponising judicial tenure is therefore more subtle than simply amending the law.
It is for this reason that every possible step must be taken to avoid creating an environment in which judges are made to understand that their continued tenure can become entangled with political power. A judge who knows that Parliament can alter the conditions of his or her retirement may inevitably become conscious of the political environment in which decisions are made. Even if the judge remains completely independent, the institution itself becomes vulnerable to suspicion.
Unwanted questions
And constitutional democracy cannot afford a judiciary whose decisions are accompanied by whispered questions about who benefits from judges remaining in office. That is why the Government must rise above the immediate political argument.
If there is a genuine shortage of judges, appoint more judges. If there is an unacceptable backlog, reform procedures. If cases are taking decades, modernise the courts, improve case management, expand judicial infrastructure and address the procedural bottlenecks that cause delay, most notably in the Government Analysts Department. And, if experienced judges are required, make a principled and prospective case for retaining experience.
But what should not be done is to allow the solution to a systemic problem to become an excuse for creating a constitutional precedent that can later be exploited for political ends.
The NPP came to power promising to be different. That promise carries an obligation greater than simply winning elections. It requires demonstrating that the institutions of the Republic will not be bent to serve whoever happens to possess the parliamentary majority.
Previous governments frequently justified controversial institutional changes in the name of necessity, efficiency or national interest. The NPP cannot credibly condemn that tradition while reproducing its underlying logic. The ultimate test of constitutionalism is not how a government treats institutions when those institutions are convenient, it is how it treats them when they become inconvenient.
The Government should therefore slow down, consult widely and remove any reasonable suspicion that the proposed amendment is designed to benefit particular individuals. If the policy is genuinely about judicial capacity, it should be possible to formulate it in a manner that applies prospectively and neutrally. That would not be a defeat for the Government; it would be a victory for constitutional democracy because the question before Sri Lanka is ultimately much larger than whether a judge should retire at 63, 65 or 67.
Point of no return
The question is whether judicial tenure remains a constitutional safeguard or becomes another variable that governments can manipulate. Once that principle is compromised, no political party can honestly claim immunity from the consequences.
Today it may be a government you support. Tomorrow it may be a government you fear. And the constitutional precedent will not know the difference.
The NPP, therefore, should resist the temptation to treat every criticism as political warfare. Some criticism is political. Some, partisan. Some may even be malicious. But some criticism is the constitutional conscience of a democracy speaking. The Government should listen carefully enough to know the difference because governments come and go, parliamentary majorities rise and fall, presidents leave office, and ministers become opposition politicians, but institutions endure.
And when the issue is the independence of the judiciary, the safest principle is also the simplest: never change the rules governing judges merely because of the judges who happen to be sitting when the rules are changed.
Sri Lanka has experimented enough with governments placing their fingerprints on independent institutions. The last thing it should ever do is to experiment with the independence of the judiciary. The Constitution must be bigger than the Government, and the judiciary must be free enough to be bigger than politics.
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.
Leave a comment