By Vox Civis
“Judges should behave within the judiciary as well as outside it in such a manner as to consolidate the confidence of the people. Judges have no private behaviour. It should be remembered that when oppressive, criminal, arbitrary, despotic actions are taken against the people by the executive or authorities, it is the judiciary that will be the guardian of the people.”
Chief Justice Hema Basnayake spoke those words in his farewell speech on July 3, 1964, just months before the creation of the Janatha Vimukthi Peramuna (JVP). More than six decades later, with the JVP in the nation’s driving seat for the first time, they carry a painful relevance as Sri Lanka confronts a controversy that is ostensibly about the retirement age of judges but is, in reality, about something far more fundamental: the independence of the judiciary and public confidence in the constitutional order.
Petitions continue to mount before the Supreme Court challenging the Government’s proposed 22nd Amendment to the Constitution. Yet, with the period for the filing of such petitions still continuing, the Government appears determined to proceed regardless of the concerns raised by virtually the entire legal and justice sector.
President Anura Kumara Dissanayake himself has made that position unmistakably clear. Speaking at an event in Colombo last week to mark the birth anniversary of the Holy Prophet, the President expressed frustration at the extraordinary delays in the justice system. “If a case from 2006 is still awaiting judgment in 2026,” he asked, “and if nine years after a case was filed in 2017 not a single piece of evidence has been recorded, when will the public ever have faith in justice?”
Legitimate issue
It is a perfectly legitimate question. Sri Lanka’s justice system is burdened by unacceptable delays, and no one can argue otherwise. Justice delayed can become justice denied, and governments have both the right and responsibility to address systemic failures in the administration of justice. But the President then declared: “Under no circumstances will the 22nd Amendment be rolled back.” And, that is where the real problem begins.
The existence of judicial delays does not establish that extending the retirement age of Supreme Court and Court of Appeal judges is the solution. Extensive studies on the matter have previously and consistently confirmed it, while multiple reports on the subject gather dust at the Ministry of Justice. Nor does frustration with the pace of justice answer the more fundamental question of whether changing the constitutional tenure of serving superior court judges – particularly where some may personally benefit from that change – is prudent, legitimate and consistent with judicial independence.
Much has already been said about the proposed amendment since it surfaced in July. The local media has published numerous analyses and warnings. Television channels have devoted extensive coverage to the issue. Legal professionals and organisations in Sri Lanka and abroad have expressed serious reservations.
Yet there appears to have been no consultation with the very stakeholders whose professional lives and institutional responsibilities are directly affected. That is extraordinary. Constitutional reform affecting judicial tenure is not an ordinary administrative exercise, because it goes to the architecture of the separation of powers. In such circumstances, extensive consultation should not be regarded as an obstacle to reform, but as an essential safeguard against unintended consequences and abuse. The Government has instead chosen to press ahead.
The proposed amendment would increase the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65. It would also provide that the Chief Justice retire upon reaching 67 or completing six years as Chief Justice, whichever occurs first. In addition, the maximum number of other Court of Appeal judges would be increased from 19 to 24.
Suspicious timing
However, it is the timing that has intensified suspicion. The incumbent Chief Justice is due to reach the existing retirement age on December 1, 2026. The proposed amendment would therefore have the immediate effect of potentially extending the tenure of the very person who is presently occupying the country’s highest judicial office. The Government may insist that this is coincidental, but constitutional legitimacy depends not only on intention; it also depends on appearance, because justice must not only be done, but also seen to be done.
That principle becomes especially important when the legislation being challenged could directly benefit judges who may themselves be called upon to determine its constitutionality.
Former President of the Bar Association of Sri Lanka (BASL), President’s Counsel Saliya Pieris, has challenged the Government’s central justification for the amendment: that extending the retirement age of superior court judges will help resolve delays. The problem, he points out, is that the cases most directly affecting ordinary citizens – including cases involving alleged corruption, financial irregularities and criminal wrongdoing – are generally heard in the Magistrate’s Courts and High Courts.
So, what does increasing the retirement age of Supreme Court and Court of Appeal judges do to accelerate those cases? If the Government genuinely wants to solve the issue, it should explain this. The question is particularly pertinent because, as Pieris has observed, such cases do not generally end up in the Supreme Court. The Government therefore has to explain the disconnect between the problem it identifies and the constitutional remedy it proposes.
There is another troubling issue: whether the amendment is intended to apply retrospectively to judges already holding office. The proposed law does not expressly state that the increased retirement age for Supreme Court and Court of Appeal judges applies to those currently serving. Constitutional and statutory interpretation principles generally raise serious questions about retrospective application, and the Supreme Court has itself previously recognised that laws cannot be applied retrospectively. If the intention is indeed to extend the tenure of sitting judges, why was that intention not made unequivocally clear in the legislation?
That question becomes even more important because of the timing. Besides, the BASL has raised an unprecedented question in its own challenge before the Supreme Court: whether the extension of tenure and attendant benefits proposed for sitting superior court judges could amount to a “gratification” within the meaning of the Anti-Corruption Act No. 9 of 2023, as amended.
Negative public perception
The BASL has been careful to make clear that it is not alleging wrongdoing by any judge. Rather, it has drawn attention to the potential legal and public-perception implications of a situation in which judges who could benefit from the proposed extension may subsequently be required – in their judicial capacity – to determine the constitutionality of the very Bill granting that benefit. The BASL has referred specifically to Section 93(b) of the Anti-Corruption Act, which covers Supreme Court and Court of Appeal judges and provides that a judge or judicial officer who solicits or accepts gratification as an inducement or reward for doing or refraining from doing an act in a judicial capacity commits an offence of bribery. The provision carries substantial penalties.
Whether that provision ultimately applies to the circumstances surrounding this legislation is for the courts to determine. There are also legitimate arguments concerning the constitutional character of legislative and judicial acts and whether they fall within the scope of such provisions. But that is why the issue must be confronted rather than brushed aside. Even if there is no actual conflict of interest, the possibility of a perceived conflict is itself constitutionally significant.
A citizen should never have reason to believe that a judge’s continued tenure depends – directly or indirectly – upon the goodwill of the political authorities whose actions the judge may be required to review. That is why the BASL has also asked the Chief Justice to constitute a Full Bench comprising all sitting Supreme Court judges to hear the matter, citing the grave and exceptional constitutional questions involved and the potential conflict-of-interest concerns.
The Government must also explain another disturbing aspect of the controversy: the apparent certainty with which Justice and National Integration Minister Harshana Nanayakkara recently declared that no referendum would be necessary. Former Minister Professor G. L. Peiris has questioned how the Justice Minister could make such a prediction while the Supreme Court was still receiving petitions challenging the Bill.
The constitutional process is clear. A Bill to amend the Constitution is subject to challenge before the Supreme Court within the prescribed period. The Court then communicates its determination to the Speaker. The Supreme Court had therefore not completed its constitutional role when the Minister effectively announced what the outcome would be. The Government may ultimately be correct that no referendum is constitutionally required, but that is not for the Government to prejudge.
The Supreme Court is not a rubber stamp for the Executive. Nor should a Justice Minister publicly speak as though the constitutional determination has already been made. That risks undermining confidence in the very institution the Government claims it is seeking to strengthen.
Stressing the Apex Court
Professor Peiris has raised another concern: that several important matters affecting the judiciary are being presented to the Supreme Court simultaneously, including the 22nd Amendment, amendments concerning the retirement ages of High Court, District Court and Magistrate’s Court judges, and proposed amendments to the Anti-Corruption Act.
He has questioned whether the Government is deliberately creating circumstances in which the available Supreme Court judges are divided among multiple constitutional matters. Four vacancies have remained on the Supreme Court for several months despite the Court having a constitutional complement of 17 judges.
Whether the Government is deliberately manipulating the process, as alleged, cannot be assumed without evidence. But the mere existence of such a perception should be sufficient reason for the Government to proceed with extraordinary transparency. This is what consultation could have prevented. Judicial reform must strengthen independence, not create doubts about it.
That distinction appears to have been lost in the ongoing debate. In a subsequent development, the BASL has made another important point: judicial independence does not mean judicial immunity from criticism. The judiciary, like every institution exercising public power, must be open to lawful scrutiny and accountability. Court decisions, judicial conduct and the administration of justice can and should be subject to fair, fact-based and responsible criticism.
At the same time, unverified personal attacks against judges are equally dangerous. Allegations concerning judges, including the Chief Justice, should be examined through the constitutional and parliamentary mechanisms established for that purpose, with due regard to fairness and natural justice. A democracy requires both an independent judiciary and accountable judges. What it cannot tolerate is either a judiciary beyond scrutiny or a judiciary vulnerable to political pressure. Judicial tenure is therefore not simply an employment condition. It is an instrument of constitutional independence.
Security of tenure
A judge must be able to rule against the Government without wondering whether the Government can subsequently influence his or her tenure. The security of tenure exists so that judges can exercise the judicial power of the people without fear or favour. The Constitution has historically recognised this principle through protections concerning judicial office and remuneration, including safeguards designed to prevent judges from becoming dependent upon the Executive for their financial security or post-retirement prospects. Once that principle is weakened, the consequences extend beyond the individuals affected.
Consider the precedent. What happens when a future government decides it wants to reduce the retirement age rather than increase it? What happens if it dislikes particular judges and concludes that shortening their tenure would serve the public interest? What happens if a future administration uses its parliamentary majority to redesign judicial tenure whenever the composition of the Supreme Court becomes politically inconvenient? A constitutional precedent created for today’s purposes will belong to tomorrow’s governments as well.
This is why constitutional restraint matters even when a government has the parliamentary numbers to amend the Constitution. A two-thirds majority can provide the votes required for constitutional change, but it cannot, by itself, provide constitutional wisdom or legitimacy.
History offers a blunt warning about where that road tends to lead. In Venezuela, Hugo Chávez did not need tanks to neutralise the courts; a 2004 law simply reshaped the Supreme Court and packed it with a compliant majority. A later study of tens of thousands of its rulings found it had not once ruled against him. In Germany in the 1930s, the process began not with violence but with the quiet remaking of a bench that had displeased the state by daring to acquit. The mechanism is always the same: extend a judge’s tenure, and in return, expect a court that never again rules inconveniently. Sri Lanka has not crossed that line. But the pattern being assembled, piece by piece, is the one history recognises.
Unfortunate consequences
Let’s consider for a second what could happen if the amendment does go through.
It is inevitable that every Chief Justice or any other judge who immediately benefits from the extension may find his or her future judgments viewed through a political lens, regardless of the actual merits of those judgments. A ruling in favour of the government could be interpreted as gratitude for the extension. A ruling against it could be dismissed as an attempt to demonstrate independence. The tragedy is that the judges themselves may have done absolutely nothing wrong.
Yet the perception would remain. They may gain two additional years on the bench but lose something far more valuable: a portion of the unquestioned public confidence upon which judicial authority depends. What shall it profit a judge to sit for two more years if, in the process, public regard for the independence of the office is diminished? That is the question the governing National People’s Power (NPP) should be asking.
The government may genuinely believe that its intentions are honourable. It may genuinely believe that the extension will help address judicial delays. But constitutional safeguards are not designed merely for governments with good intentions. They are designed for the future – including governments that may not have them.
The NPP came to power promising a different political culture, one based on institutional integrity, accountability and an end to the practices associated with the old political order. That promise makes this controversy particularly important. The true test of a government’s commitment to institutional reform is not how it behaves when institutions agree with it; it is how it responds when independent institutions challenge it. If the legal profession is overwhelmingly raising concerns, the answer should not be to simply press harder.
There is still time for the President and the Government to reconsider. Doing so would not represent defeat, but show confidence in the constitutional system. If the Government believes that the amendment is necessary, it should be capable of persuading the legal profession and the public through evidence and reason. If its objective is genuinely to accelerate justice, it should demonstrate how extending the tenure of superior court judges will solve the delays experienced by ordinary citizens in lower courts.
If it cannot convincingly establish that connection, then it must confront the alternative interpretation: that the principal immediate beneficiary of the amendment is not the justice system but an individual occupying the country’s highest judicial office. That perception alone is dangerous. The issue, ultimately, is not whether a Supreme Court judge should retire at 65 or 67 but whether citizens can trust those who are supposed to protect them from the exercise of arbitrary state power, and remain institutionally independent from the politicians exercising that power.
‘Guardian of the people’
The judiciary is the final refuge of the citizen when every other avenue has failed. That is why Chief Justice Hema Basnayake’s words still matter. “The judiciary,” he reminded the country in 1964, “will be the guardian of the people.”
The 22nd Amendment should not become law merely because the Government can push it through. It should become law only if, after rigorous constitutional scrutiny, broad consultation and transparent debate, Sri Lanka can be confident that it strengthens rather than compromises the independence of the judiciary.
The issue has therefore become much larger than the retirement age of a few judges. It is about whether judicial tenure can become a political lever. It is about whether constitutional safeguards can be altered without broad consensus. It is about whether the government of the day understands that it is not merely exercising power, but creating precedents for governments it will one day become the opposition to.
And above all, it is about trust. A judge can be given two additional years in office by law. But public confidence cannot be legislated into existence. Once diminished, it is near impossible to restore.
There is still time. The President should use it. Because the integrity of the judiciary is not the Government’s possession to dispose of. It belongs to the people.
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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