• Promises to inquire from Prez Secretariat and report to Parliament 
• Also weighing pros and cons of raising judges’ retirement age 

Justice Minister, Harshana Nanayakkara once again declined to respond to a question on delays in filling vacancies in the apex/superior Courts – the Supreme Court (SC) and the Court of Appeal (CA) - citing Parliamentary Standing Orders (SOs) and maintaining that the matter did not fall under his Ministerial purview.

The issue arose during the oral question round in Parliament yesterday (11) when Opposition Parliamentarian, attorney Ajith P Perera raised questions about the continuous delay in appointing Judges to the Superior Courts. Perera said that appointments to the SC, the CA and, in some instances, the High Courts (HCs), represented important milestones in the careers of officers serving in the Attorney General's (AG) Department. 

He pointed out that there are currently eight vacancies in the SC and the CA, in addition to vacancies in the HCs, and claimed that some of those positions had remained unfilled for nearly six months. "There has never been a delay of this magnitude in history. This has created a serious issue regarding the career progression of lawyers serving in the AG's Department. What action will you take to expedite these appointments?" he queried.

Nanayakkara then objected to it, citing Parliamentary SOs. "Supplementary questions can only arise from the original question. Last time too, Perera questioned me in the same manner and raised a supplementary question that did not arise from the original question. Since this violates SO 33(1), I am not obliged to answer it," he said.

SO 33(1) reads: “Any Member may put not more than two supplementary questions on any such answer given under SO 32: Provided that, such supplementary questions shall not introduce matters not included in the original question, and shall be put only for the purpose of further elucidating any matter arising out of an oral answer: Provided further, the Speaker shall disallow any supplementary question if the Speaker is of the opinion, that such supplementary question infringes the rules as to admissibility of questions.”

A set of questions raised by Opposition Leader Sajith Premadasa also included the matter. Nanayakkara initially responded to the other questions but the question pertained to the SC’s and the CA’s vacancies. Premadasa then pointed out that one of the questions directed at Nanayakkara had not been answered.

Apologising to Premadasa over his failure to respond to the question initially, Nanayakkara said that appointments to the SC and the CA are made by the President and not the Justice Minister. "The Justice Minister's authority does not extend to those appointments. These matters are handled through the Presidential Secretariat. It is not a subject that comes under my Ministry. However, I will make inquiries and report back to you," he said.

The exchange came against the backdrop of a similar incident in Parliament earlier, when Nanayakkara declined to answer a question on the same matter by citing SOs. 

Meanwhile, Nanayakkara said that the Government is considering both the arguments in favour of and against the increasing the retirement age of Judges of the SC and the CA, but has not yet taken any formal decision on the matter.

Raising a question in Parliament yesterday, Premadasa noted that a serious public debate has emerged over proposals to increase the retirement age of Judges of the Superior Courts. He also pointed out that the Bar Association of Sri Lanka (BASL) had warned that any such move should take into careful account its implications for judicial independence, the rule of law, and public confidence in the administration of justice. He queried as to whether the Government is preparing to introduce a proposal or legislative amendment to revise the retirement age of SC and CA Judges, and if so, whether the move is based on any needs assessment, policy document or empirical study.

Responding to him, Nanayakkara said that a range of professional bodies and other interested parties have made representations to the Government on the issue. "Various professional groups, including the BASL and others, are expressing their views. Different parties are making requests for different reasons. It is the Government's policy responsibility to consider those proposals constructively. The retirement age for judges in the United Kingdom is 75, while judges of Canada's federal and superior courts retire at 75. In Australia, the retirement age for federal judges is 70, while it is 75 in Brazil and up to 68 in Germany. Based on these examples, some have suggested that extending the service period of judges and judicial officers would be a positive step," he said. At the same time, Nanayakkara said that other groups have warned that such a move could result in injustice, hinder the administration of justice or affect the independence of the Judiciary. "There are also submissions that it could lead to unfairness, create obstacles to the proper administration of justice and have an impact on judicial independence. We are considering all these views." He stressed however that the Government has not taken any official decision on extending the retirement age of Superior Courts Judges. "As of now, there is no Cabinet of Ministers decision to extend the retirement age. We are taking all of these views into consideration before making any decision." Addressing the House, Nanayakkara said that, in addition to judges, professionals from other sectors have also submitted requests seeking an increase in the retirement age. He noted that the Government is considering these requests positively, adding that while some of the appeals are reasonable, others appear to be politically motivated.