There are times when the greatest test of political power is not whether a government can force something through Parliament, but whether it has the wisdom to recognise when it should not. Sri Lanka may soon be approaching such a decisive moment.
The National People’s Power (NPP) Government’s proposal to increase the retirement age of judges of the Supreme Court and Court of Appeal has unleashed a political and institutional storm that should concern every citizen who cares about the future of this yet-democratic Republic.
Opposition parties, which normally cannot agree on the time of day, have finally closed ranks. The legal fraternity is aggressively mobilising, the Judicial Service Association has already unanimously rejected the proposal, and sections of the Buddhist clergy are preparing to enter the debate. Meanwhile, international legal organisations have warned that the move could damage public confidence in the independence of Sri Lanka’s Judiciary.
The Government should listen, for this is not simply another political battle between the NPP and an Opposition seeking relevance. It is not just a dispute over the retirement age of a handful of judges; rather, it goes to the heart of the relationship between political power and the institution that is supposed to stand above political power. Sri Lanka has been down this road before. It has seen what happens when governments begin to regard constitutional institutions as obstacles to be overcome rather than safeguards to be respected.
The proposed amendment is being presented as reform designed, among other things, to address delays in the administration of justice. But this argument does not withstand scrutiny. Sri Lanka’s courts face an enormous backlog of approximately 1.1 million cases. That is a national crisis. But extending the tenure of a few senior judges is not a credible solution to a problem of such magnitude. The answer, instead, lies in appointing judges to existing vacancies, strengthening the court system, amending bail laws relating to drug-related offences, improving infrastructure, modernising procedures, expanding the use of technology, and addressing the administrative failures that contribute to the notorious delays.
Indeed, the NPP’s own record in office raises an obvious question. The 20th Amendment increased the number of judges in the Court of Appeal from 12 to 20 and in the Supreme Court from 11 to 17. Yet vacancies in both courts have reportedly remained unfilled for more than a year. If the Government is genuinely concerned about the capacity of the higher Judiciary, why has it failed to fill existing vacancies? Why seek to extend the tenure of serving judges while leaving so many positions vacant? These are questions that are begging for answers.
The Constitution currently fixes the retirement age of Supreme Court judges at 65, Court of Appeal judges at 63, and High Court judges at 61. Parliament may possess the constitutional power to amend those provisions, subject to the required procedure, but the fact that something can be done does not mean that it should be done. Constitutional power must be exercised with constitutional restraint. That is particularly true when the institution being affected is the Judiciary.
The most important principle in this entire controversy was articulated more than a century ago by former Lord Chief Justice of England Lord Hewart: “Justice must not only be done, but must also be seen to be done.” That is the principle Sri Lanka risks abandoning if the NPP decides to go ahead with its agenda.
A government may insist that its intentions are honourable, it may declare that the proposed amendment is purely administrative, it may even reject every allegation of political motivation. But the public does not judge constitutional changes only by the explanations offered by those proposing them. It judges them by their timing, their context, and their consequences. And the context here is certainly cause for concern.
The NPP’s proposal has emerged against a backdrop of increasingly aggressive political rhetoric concerning the Judiciary. Before the 2024 Presidential Election, JVP Politburo Member and now Minister of Agriculture K.D. Lalkantha spoke of establishing party-run courts in villages to dispense justice. Senior political figures have been suggesting even as recently as last week that the Government can only be removed by divine intervention. The President has made public pronouncements concerning matters before courts, even going to the extent of specifying dates. And JVP General Secretary Tilvin Silva has reportedly predicted the outcome of an investigation involving a minister facing scrutiny over the coal procurement scandal.
Individually, each of these incidents might be dismissed as political rhetoric. Together, however, they create a pattern. The pattern is one in which the Judiciary increasingly appears to be viewed by sections of the political establishment not as an independent constitutional pillar, but as an institution to be criticised, pressured, or managed. It is in this atmosphere that the Government now proposes to alter the retirement age of senior judges.
History has taught that if and when the independence of the Judiciary is at stake, the first thing that matters is perception. A government that wishes to preserve public confidence should not introduce a measure that can reasonably be interpreted as an attempt to benefit a particular individual or preserve a particular judicial composition.
When J.R. Jayewardene who commanded a five-sixths majority in Parliament sought to amend the Constitution to reinstate a defeated UNP MP for Kalawana, Chief Justice Neville Samarakoon stood firm. Despite being a personal friend of Jayewardene from their days at the Bar, he ruled that the proposed constitutional amendment required not merely a two-thirds majority in Parliament but also approval at a referendum. Jayewardene withdrew the amendment. The lesson was clear: even the most powerful government cannot be allowed to treat the Constitution as a political instrument to be bent at will.
Several decades later, the impeachment of Chief Justice Shirani Bandaranayake by the Rajapaksa administration produced another profound institutional crisis. The legal fraternity and members of the public protested. The process left a deep wound in the country’s democratic history. President Maithripala Sirisena later reinstated her for one symbolic day before her retirement. However, even though that gesture could not undo the original injustice, it recognised something important: the dignity of constitutional office cannot be casually destroyed by political power.
Sri Lanka has, therefore, seen this movie before. Drunk with power, it has seen governments attempt to overpower institutions. It has seen the Judiciary placed under pressure. It has seen constitutional manipulation produce political backlash and lasting institutional damage.
The NPP Government appears to have forgotten that it was elected because millions of Sri Lankans wanted an end to that political culture. The people did not vote for it to politicise the Judiciary. Neither did they vote for constitutional amendments designed, or perceived to be designed, to protect individuals in office, and they certainly did not vote for a government that would treat its parliamentary majority as a licence to override every institutional objection.
The vast majority voted for change and clean government. They voted for accountability and institutional integrity. The NPP must therefore understand that a mandate for change is not a mandate for unchecked power. A two-thirds majority is not a blank cheque. It is, in fact, a greater responsibility to exercise restraint, because the larger the mandate, the more important it becomes for a government to demonstrate that it can restrain itself. That is what separates constitutional government from majoritarian rule.
The reaction of the Judicial Service Association should be especially sobering. The association, representing magistrates and district judges, unanimously rejected the proposal. This is not a political party seeking to regain power. These are members of the judicial system expressing concern about a proposal affecting the very structure and independence of the institution in which they serve. The Government should not dismiss them. Nor should it dismiss the growing opposition from the wider legal fraternity.
Just last Thursday (23), Opposition Leader Sajith Premadasa called on political parties to unite in defence of judicial independence. Former President Ranil Wickremesinghe, who supported Premadasa’s call, pointed to the need for practical solutions to the backlog of cases rather than simply extending judicial tenure. Namal Rajapaksa meanwhile argued that constitutional amendments designed to benefit individuals had been rejected by the public before. These political leaders that have spent years attacking one another are now finding common ground. That should tell the Government something.
The issue has also begun to move beyond the political arena. Lawyers are preparing to meet. Buddhist monks are expected to discuss the matter. The Commonwealth Lawyers Association has urged the Government to abandon the amendment, warning of the impact on public confidence in the Judiciary. The Law Association for Asia and the Pacific (LAWASIA) has issued a similar appeal. The damage is therefore no longer merely domestic. Sri Lanka’s international reputation is at stake.
It is for this reason that the Government should ask itself a simple question: is this battle worth fighting? Even if the proposed amendment can be legally enacted, what does the Government gain? And what does the country risk? The cost-benefit calculation is not too difficult.