By Vox Civis
Will the National People’s Power (NPP) government lay hands on the last bastion of democracy? That is the question most people who cherish democratic ideals are asking these days, in the face of what is being seen as a direct affront to both the constitution and the judiciary.
The NPP came to power on the promise of ‘system change.’ It was the slogan that captured the imagination of a frustrated electorate weary of corruption, political patronage, economic mismanagement, and the decay of public institutions. The phrase was deliberately broad, allowing voters to project their own hopes onto it. Yet, nearly two years into government, a growing number of Sri Lankans are beginning to ask a familiar question: system change for whom?
There has undoubtedly been change. A change most people did not see coming and contradictory to what was promised. The state apparatus is increasingly being populated by individuals perceived to be politically aligned with the ruling administration. In other words, the quiet yet stealthy capture of the state. Critics point to appointments and influence extending across key institutions, from the Treasury and state enterprises to law enforcement and independent commissions. Whether fair or unfair, the perception has taken root that the NPP has been steadily consolidating influence throughout the machinery of government.
It is to the credit of regimes past that none attempted or indulged in the level of political infiltration of the state as being witnessed at present. Despite this stealthy onslaught, the one institution that has largely insulated itself from such accusations has been the judiciary.
Intense concern
That is why the government’s reported proposal to amend the Constitution and increase the retirement age of Supreme Court and Court of Appeal judges has ignited such intense concern among lawyers, opposition parties, civil society activists, and constitutional scholars. At stake is not merely the retirement age of a handful of judges. What is being debated is the future independence of the judiciary itself and the public’s confidence in the final institution standing between citizens and arbitrary power.
For all intents and purposes, an extension of service can be construed as a special incentive. An incentive which by default amounts to an unnecessary blemish the judiciary can do without, having fiercely guarded its independence thus far and for which it is immensely respected. The fact that the proposed amendment is being introduced at a decisive juncture is almost impossible to ignore.
Only weeks ago, public controversy erupted when President Anura Kumara Dissanayake, speaking at a public gathering, appeared to suggest that citizens should be prepared to applaud a court verdict that was due to be delivered on May 25. The statement generated widespread concern because it appeared to imply foreknowledge or expectations regarding a judicial outcome. Although the anticipated judgment did not materialize on that date, the damage was already done. The episode left many questioning whether the Executive was becoming uncomfortably invested in judicial proceedings.
Against that backdrop, the sudden emergence of a constitutional amendment affecting superior court judges inevitably invites scrutiny. It is not enough for a government to insist that its intentions are noble. In matters involving the judiciary, perception is often as important as reality. Public confidence depends not merely on courts being independent but on them being visibly and unquestionably independent and free of blemish.
The first question that must therefore be asked is simple: Why now? Why the indecent hurry?
Enduring provisions
Since the promulgation of the 1978 Constitution, the retirement age of Supreme Court judges has remained at 65 years while Court of Appeal judges retire at 63. These provisions have endured through multiple administrations, constitutional crises, political upheavals, and changes of government. No administration has considered it necessary to alter them. Indeed, even governments accused of far greater authoritarian tendencies refrained from making such changes.
Therefore, the people of this nation are entitled to question as to what urgent necessity exists today that did not exist yesterday?
The official justification offered by the government is the need to retain institutional memory, preserve judicial expertise, and ensure continuity within the higher courts. At first glance, these appear to be reasonable objectives. Experienced judges undoubtedly contribute valuable knowledge to the legal system. Judicial continuity can enhance consistency in jurisprudence. Yet, the argument begins to unravel upon closer examination.
The judiciary’s capacity was already significantly expanded through the 20th Amendment. The Supreme Court was increased from 11 to 17 judges while the Court of Appeal expanded from 12 to 20 judges. Importantly, several vacancies reportedly remain unfilled to date. If continuity and capacity are genuine concerns, why not simply fill existing vacancies? Why resort instead to a constitutional amendment that alters long-established judicial service conditions?
This is precisely the concern raised by the Bar Association of Sri Lanka (BASL), which has formally urged the President to abandon the proposal. The BASL has argued that the amendment is neither necessary nor desirable and has warned that the public is likely to perceive it as an attempt to interfere with the judiciary.
Such concerns cannot be dismissed lightly. Judicial independence does not exist in a vacuum. It depends on public trust. The moment citizens begin to suspect that judges owe their continued tenure to the goodwill of the Executive, confidence in judicial impartiality will inevitably erode. This is where the proposal enters dangerous territory.
The direct beneficiaries of the amendment would not be future judges. They would be the judges currently serving on the superior courts. The government would effectively be granting them an extension of tenure that they were not entitled to when they accepted their appointments. Whether intended or not, this creates the appearance of a benefit being conferred by the Executive upon the judiciary. That perception alone is deeply problematic.
Unnecessary doubt
The issue is not whether individual judges would compromise their integrity; most observers would readily acknowledge the professionalism and dedication of Sri Lanka’s superior court judges. The issue is whether ordinary citizens can reasonably be expected to believe that complete independence remains intact when judges receive an extension directly attributable to a government decision. Why, because even the appearance of indebtedness can be corrosive.
The Lawyers’ Collective, comprising senior lawyers, academics and legal practitioners, has gone further, characterizing the proposal as a potential form of court-packing. Their concern is not necessarily that additional judges are being appointed but that the existing composition of the superior courts could be preserved for political reasons by extending the tenure of sitting judges.
This concern is reinforced by the widespread perception that the proposal’s immediate practical effect would be to keep the current Chief Justice in office beyond his scheduled retirement date. Whether that perception is accurate or not is almost secondary. The fact that such suspicions exist demonstrates why constitutional changes affecting judicial tenure must be approached with extreme caution.
The Lawyers’ Collective has also drawn attention to international experience. Across numerous jurisdictions, politically motivated changes to judicial tenure and court composition have often served as precursors to executive encroachment on judicial independence. It is for precisely this reason that international standards emphasize the importance of protecting judges from alterations to their terms and conditions of service.
The United Nations principles concerning judicial independence and the Commonwealth’s Latimer House Principles both stress that judges should be insulated from political manipulation. Retirement ages and tenure arrangements should not be altered at the discretion of governments seeking short-term advantages.
‘System control’
If the NPP government which promised ‘system change’ ignores these principles at its own peril and that of the nation as well, it will be abundantly clear that what it is pursuing is in fact ‘system control.’ The implications, therefore, extend well beyond constitutional theory.
Article 14 of the International Covenant on Civil and Political Rights (ICCPR) guarantees every citizen the right to a hearing before an independent and impartial tribunal. Judicial independence is therefore not merely a matter of institutional design; it is a human rights issue.
If citizens begin to reasonably fear that courts have become politicized, confidence in the justice system will inevitably suffer. The inherent danger is that when confidence suffers, so does the legitimacy of judicial decisions. And when judicial legitimacy is undermined, the very foundation of democratic governance in this country will begin to weaken. For a nation that has endured more than its fair share of tragedy both man-made and natural since independence, this could be the unkindest cut.
There is another dimension that has received insufficient attention. The proposed amendment would significantly affect the career progression of judges throughout the judicial system. Hundreds of judges serving in High Courts, District Courts and Magistrates’ Courts aspire elevation to the superior courts. Their professional advancement depends upon vacancies becoming available through retirement. Extending the tenure of sitting judges effectively freezes those opportunities.
The result is a bottleneck that delays promotions, frustrates legitimate career expectations, and undermines morale throughout the judiciary. Talented judicial officers who have spent decades preparing for advancement would be forced to wait longer because positions that were expected to become vacant would remain occupied.
No shortage of candidates
The Colombo High Court Lawyers’ Association has specifically highlighted this concern. It argues that there is no shortage of qualified candidates available from the Judicial Service, the Attorney General’s Department, or the Private Bar. If vacancies exist, they can and should be filled through established constitutional processes.
The real question therefore remains unanswered: Why is the government pursuing this particular solution? The concern becomes even more pronounced when viewed through an economic lens.
Sri Lanka remains heavily dependent on foreign investment, international financial support, and external confidence. Investors are attracted not merely by economic indicators but by institutional stability; most notably the legal system and judiciary. They seek assurance that contracts will be enforced, disputes will be resolved fairly, and courts will operate independently of political influence.
A government willing to alter the constitutional architecture of the judiciary through ad hoc amendments will therefore be sending precisely the wrong signal at precisely the wrong time. At a time when the country desperately needs foreign exchange, economic growth, and investment confidence, introducing controversial constitutional changes affecting judicial independence risks creating uncertainty where stability is most needed.
The broader political context is equally troubling. The NPP rose to power as a movement that repeatedly criticized previous governments for constitutional manipulation, institutional interference, and concentration of power. Its appeal rested heavily on the promise that it would govern differently. That history matters.
If any previous administration had attempted an identical amendment under similar circumstances, one suspects the NPP would have been among the loudest voices condemning it. The party built much of its political identity on opposition to precisely these kinds of executive maneuvers. Consistency therefore is an unavoidable test.
Safeguarding independence
Principles cannot depend on who occupies office. Judicial independence is either worth defending at all times or it is not worth defending at all. The irony is that if the government’s intentions are genuinely benign, there is an obvious solution available.
Any increase in retirement age could be made applicable only to judges appointed in the future. Such an approach would eliminate accusations of personal benefit, political inducement, or institutional favoritism. It would allow policymakers to pursue long-term reform without affecting current office holders.
Equally important, any proposal of this magnitude should emerge from broad consultation involving the legal profession, civil society, constitutional experts, and the public. Constitutional reform cannot and should not be conducted through piecemeal interventions that appear designed to address immediate political circumstances. After all, the Constitution is not a convenience: it is the framework within which democratic power is exercised and constrained.
Sri Lanka’s history offers repeated lessons about the dangers of constitutional engineering undertaken for short-term objectives. Time and again, amendments introduced to solve immediate political problems have produced long-term institutional damage; a prime example being the so-called ‘temporary’ Prevention of Terrorism Act, more infamously known as the PTA.
The judiciary remains the citizen’s final safeguard against Executive excess, legislative overreach, and abuse of power. Once public confidence in that institution is weakened, rebuilding it becomes extraordinarily difficult, if not impossible. That is why the current debate transcends retirement ages. It is fundamentally about whether the government understands the distinction between possessing power and exercising restraint.
Democracy is not measured by how governments treat institutions they control. It is measured by how they treat institutions they do not. The judiciary is the last bastion of that principle.
The question confronting Sri Lanka today is therefore larger than a constitutional amendment. It is whether a government elected on promises of system change is prepared to respect the limits that democracy places upon its authority. For if the final independent pillar of the state becomes subject to political calculation, the system will indeed have changed; for the worse.
The tragedy is that it is not the change that Sri Lanka voted for.
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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