There is a question about the proposed extension of the retirement age of Sri Lanka’s superior court judges that the Government has not adequately answered and perhaps should answer before it proceeds any further. What happens if a future government decides to do exactly the opposite?
Suppose a future government inherits the precedent now being created and decides that, instead of extending the retirement age of judges, it would reduce it. Suppose the retirement age is lowered from 67 to 60, or even 63. A government with a parliamentary majority could then argue that it is merely exercising the same legislative power that the present National People’s Power (NPP) Government established as legitimate. A significant number of sitting judges could suddenly be compelled to retire, creating vacancies that could subsequently be filled by judges chosen by the government of the day.
That is not an imaginary danger: it is one of the classic mechanisms through which constitutional systems gradually erode without a single dramatic assault on democracy. The issue, therefore, is not simply whether a judge should remain on the bench for another two years; the real issue is whether judicial tenure is to become a political instrument that can be adjusted by whichever government happens to possess a parliamentary majority.
Once that principle is established, it belongs not to the government introducing it, but to every government that follows. And therein lies the danger. It is for this reason that security of judicial tenure is regarded as one of the fundamental pillars of judicial independence. Judges must be able to make decisions without having to consider whether displeasing the Executive, the Legislature, or the political establishment could cost them their positions.
The danger works in both directions. A government could raise the retirement age to retain judges whose decisions it finds congenial while another could lower it to remove judges whom it considers inconvenient. Both actions would produce the same fundamental consequence: the composition of the Judiciary becomes vulnerable to political manipulation.
History provides some painful warnings. Hungary demonstrated how technical changes to retirement ages can have profound constitutional consequences. The mandatory retirement age for judges was abruptly reduced from 70 to 62, forcing the majority of judges into retirement and creating vacancies that could be filled under a new political configuration. European courts subsequently found the measure incompatible with judicial independence.
Poland followed a similarly controversial path when the retirement age of Supreme Court judges was reduced from 70 to 65, giving the Executive a role in deciding who could remain. The measure threatened to remove a substantial proportion of sitting Supreme Court judges, including the First President of the court. Domestic and European judicial intervention eventually forced the restoration of judges who had been removed.
The lesson here is that judicial tenure cannot safely be treated as an ordinary administrative matter. If retirement ages genuinely need to change, constitutional democracies have mechanisms designed to prevent governments from manipulating the Judiciary for immediate political advantage. New retirement rules can be applied prospectively to future appointments rather than to sitting judges. Changes can be phased in, rather than imposed abruptly. Constitutional entrenchment can prevent ordinary legislative majorities from changing fundamental safeguards.
The principle behind these safeguards is that the government that happens to be in power today must not be given an opportunity to redesign the Judiciary for its own convenience. It is against this backdrop that the Government’s determination to extend the retirement age of superior court judges deserves closer scrutiny, particularly because it has encountered objections from virtually the entire legal establishment.
The Government’s stated justification – that the extension is necessary to address the enormous backlog of cases – is flimsy at best. Sri Lanka has more than one million cases pending before its courts. Yet only a tiny fraction is before the Supreme Court. Of the 1,121,758 pending cases cited for July 2025, approximately 806,153 were in Magistrates’ Courts and another 260,007 in District Courts. Together, those two levels accounted for well over a million cases.
Precisely what, then, will extending the retirement age of a handful of Supreme Court judges do to address that problem? The Supreme Court has already been expanded from 11 to 17 judges in 2020, and even today, there are unfilled vacancies in both the Supreme Court and the Court of Appeal. Increasing the longevity of existing Supreme Court judges does not, by itself, increase the number of courtrooms, magistrates, district judges, prosecutors, registrars, support staff, or technological infrastructure required to process the overwhelming majority of cases clogging the system. Nor does it reform archaic procedures, improve case management, modernise court administration, or reduce unnecessary postponements. In other words, extending the retirement age may give some judges more years on the bench, but would not necessarily give Sri Lanka a faster justice system.
There is, significantly, already a roadmap for dealing with the country’s judicial delays. The Asian Development Bank-funded Justice Sector Reform Study commissioned by the Ministry of Justice and submitted in 2023 contains an extensive set of recommendations dealing with the structural problems that have contributed to delays. It addresses court administration, technology, procedural reform, case management, and institutional capacity. Yet, the curious irony is that nowhere in that extensive study does it suggest increasing the retirement age of judges as the central prescription for solving the problem.
If the Government’s principal objective is genuinely to accelerate the administration of justice, why not begin by implementing the comprehensive reforms that have already been studied and recommended in consultation with all stakeholders? Why should an isolated change to the tenure of Superior Court judges become the centerpiece of a judicial reform agenda when the overwhelming majority of the backlog lies elsewhere?
There is another constitutional question that cannot simply be brushed aside. The Government has argued that a referendum is unnecessary because the proposed amendment does not fall within the ambit of Article 83 that requires approval by the people at a referendum. But the constitutional question does not end with Article 83. Articles 3 and 4 lie at the heart of Sri Lanka’s constitutional architecture. Article 3 declares that sovereignty is in the people and is inalienable. Article 4 provides the framework through which that sovereignty is exercised, including through the organs of government. Whether an alteration affecting judicial tenure has implications for the sovereignty of the people and the constitutional structure through which that sovereignty is exercised is ultimately a matter for the Supreme Court to determine. And therein lies the extraordinary dilemma now confronting the Judiciary.
The Supreme Court is the institution that must ultimately determine whether a referendum is constitutionally required if the matter is challenged. Yet the judges themselves are among those who stand to benefit from the proposed extension. Judges are also human beings. They have careers, families, and legitimate interests. Two additional years in office bring additional remuneration, perks, status, pension implications, and professional longevity. That does not mean, of course, that any judge would allow personal interest to influence a constitutional determination. Judges are presumed to act according to law and conscience.
Justice, however, has always recognised that the appearance of a conflict can be almost as damaging as an actual conflict. This is why the most dignified course available to the judges may be to recognise the extraordinary nature of the circumstances themselves. If there is an obvious and unavoidable perception that judges are being asked to determine a constitutional question concerning benefits that would accrue directly to themselves, should they not consider declining to determine their own fate and allow the people – from whom the Judiciary derives its authority – to decide? Such a course would not diminish the Judiciary. It would enhance its moral authority.
The Judiciary is not an institution above the people. It is an institution established under the Constitution as an instrument through which the sovereignty of the people is exercised. The present controversy has therefore placed Sri Lanka’s courts in a very difficult position – something they have arguably never faced since the adoption of the 1978 Constitution. Therefore, this is not just a question of administrative convenience, but more importantly, a test of constitutional restraint. And that is why Article 107 deserves particular attention. The constitutional provisions governing the appointment, tenure, and removal of judges of the superior courts are not accidental bureaucratic arrangements, but integral to the independence of the Judiciary.
The retirement age is therefore not simply a number written into a statute. It is part of the architecture designed to protect judges from political pressure. Once that architecture is altered even seemingly for the benefit of judges currently occupying office, the public inevitably begins to ask why. And perception matters enormously in the administration of justice. The Latin maxim that justice must not only be done but must also be seen to be done is not an ornamental phrase. Public confidence is one of the foundations upon which the authority of every court ultimately rests.