Sri Lanka is witnessing an unprecedented effort to challenge a culture of impunity, with senior political figures, public officials and others facing investigation and prosecution. The significance of the present moment is whether Sri Lanka can establish a system in which no person, regardless of political position or social status, is above the law. The credibility of accountability depends on an independent Judiciary capable of deciding difficult cases without fear or favour. It is in this context that the Government’s proposal to amend Article 107(5) of the Constitution to raise the retirement age of Supreme Court (SC) Judges from 65 to 67 and that of Court of Appeal (CA) Judges from 63 to 65 has attracted particular attention. The Government has also approved amendments to increase the retirement age of judges in the other courts by two years.
The Government has justified the proposal on the grounds of the severe backlog of cases and the need to retain experienced judges. Justice Minister, attorney Harshana Nanayakkara has said that approximately 1.1 million cases are pending before courts and has emphasised that extending the retirement age is one part of a wider effort to improve judicial efficiency. At a time when the courts are handling major criminal and corruption cases alongside an enormous backlog, the experience and skills of senior judges are valuable institutional assets. The Bar Association of Sri Lanka (BASL) and Opposition parties have raised concerns about the implications for judicial independence and public confidence. They have taken their objections to the wider public, but, with limited success.
The general population does not appear as apprehensive about the Government's motives as the BASL and Opposition parties, particularly when ongoing prosecutions correspond to public expectations that corruption and the abuse of power should finally be addressed. The debate, however, needs to go beyond whether judges should retire two years later. As political scientist Prof. Jayadeva Uyangoda has argued, the larger issue is the condition of the judicial system itself. Delays, administrative weaknesses and inadequate institutional capacity all affect access to justice. Systems change requires more than pursuing individual cases. It requires reforms that make accountability a permanent feature of governance rather than something dependent on the intentions of a particular government.
Judicial independence
Judicial independence is especially important at a time when institutions are attempting to dismantle a longstanding culture of impunity. The credibility of this process depends on whether courts can decide difficult cases without fear or favour. Continuity can strengthen the effectiveness and public confidence of the Judiciary by providing stability and consistency in the administration of justice. Leadership matters when institutions face exceptional challenges. The present Chief Justice (CJ), Preethi Padman Surasena, was the President of the CA during the constitutional crisis of October 2018, when President Maithripala Yapa Sirisena dismissed Prime Minister, attorney Ranil Wickremesinghe and appointed attorney Percy Mahendra Mahinda Rajapaksa in his place. As political tensions escalated, the CA issued an interim order restraining Rajapaksa from functioning as the Premier, and the SC later upheld the challenge to the President's dissolution of Parliament.
In the case of the “constitutional coup”, the Court resolved an exceptionally controversial political conflict through constitutional and legal processes, demonstrating that judicial independence can prevail even under intense political pressure. This experience illustrates why judicial leadership becomes particularly important during periods of national strain. It also cautions against reducing judicial independence to the retirement age alone. Extending the judicial tenure by two years does not automatically make judges beholden to the Government that enacted the change. Sri Lanka has examples of Judges who ruled against the wishes of the Governments that appointed them and paid a heavy personal price, notably CJs, Queen’s Counsel Neville Dunbar Mirahawatte Samarakoon in 1984 and Dr Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake in 2013.
The stronger constitutional safeguard already exists in the 21st Amendment to the Constitution, which requires the approval of the Constitutional Council for appointments to the SC and the CA. As a multi partisan body comprising Government, Opposition and civil society members, it provides an important institutional check. Judicial independence rests on constitutional safeguards and impartial rules, not on the assumption that judges will inevitably be influenced by a generally applicable extension of tenure. The BASL has nevertheless raised a serious concern about changing the retirement age of serving judges. In its May communication to the President, it argued that the existing retirement ages have remained unchanged since the 1978 Constitution and should not be altered arbitrarily.
Ensuring continuity
The more serious constitutional concern would arise if the Executive was given discretion to decide which judges received extensions. A uniform rule applying equally to all judges, as proposed in the 22nd Amendment to the Constitution, is fundamentally different from a system of selective extensions. Public confidence depends on confidence that judicial conditions of service are not being manipulated for political purposes. In this case however, there is also a compelling demographic argument. When the Constitution was adopted in 1978, life expectancy in Sri Lanka was about 67 years. By 2024, it had risen to almost 78 years, an increase of nearly 11 years. Many professionals are able to contribute effectively well beyond the retirement ages established almost half a century ago.
This raises a broader policy question. The Government should also consider whether retirement ages in other sectors, including the academia and the public service, should be reviewed in light of increased longevity. The former Eastern University Vice Chancellor Prof. Thangamuthu Jayasingam made a similar argument several years ago when advocating a higher retirement age for academics. If retirement ages are revised, there is also a case for consistency within the Superior Courts. All SC and CA Judges should have a common retirement age of 67. The proposed six year limit on the tenure of the CJ also deserves reconsideration. A CJ appointed before the age of 61 could otherwise be compelled to leave the SC before reaching the retirement age applicable to other judges, resulting in the unnecessary loss of valuable judicial experience.
The retirement age debate should therefore become an opportunity to strengthen institutions rather than be a narrow dispute over two additional years of service. Sri Lanka has waited a long time for public institutions to begin dismantling the culture of impunity. Political leadership, judicial leadership, professional law enforcement and an independent legal profession all have essential roles in ensuring that this process succeeds. Continuity will command public confidence only if it is accompanied by transparency and respect for constitutional safeguards. Government leaders have indicated that they remain open to adjustments following public opinion and Parliamentary debate. Applied uniformly and protected by the existing constitutional framework, the 22nd Amendment can retain valuable judicial experience while strengthening the continuity and public confidence that the Judiciary needs at this important moment in Sri Lanka's democratic journey.
The writer is the Executive Director of the National Peace Council organization
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The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication