The Government’s reported move to amend the Constitution to increase the retirement age of judges of Sri Lanka’s superior courts has ignited one of the most significant constitutional debates in recent years, with lawyers, judges, professional bodies, and political leaders warning that any reform affecting the Judiciary must be approached with exceptional care and transparency.

Although governments have amended the Constitution more than 20 times since 1978, changes affecting the Judiciary have traditionally attracted greater scrutiny because they concern one of the three independent organs of government entrusted with upholding the rule of law and protecting constitutional democracy.

The present controversy is therefore not merely about whether judges should serve longer. It has evolved into a broader debate on constitutional governance, judicial independence, the separation of powers, and the process by which constitutional reforms should be undertaken.

Constitutional framework

Sri Lanka’s superior courts comprise the Supreme Court, the country’s apex court, and the Court of Appeal, the second-highest court exercising appellate and certain original jurisdictions. The appointment, tenure, and removal of judges of both courts are governed by Article 107 of the Constitution.

Under Article 107(1), the Chief Justice, the President of the Court of Appeal, and every other judge of the Supreme Court and Court of Appeal are appointed by the President, subject to the approval of the Constitutional Council. The Constitutional Council was established to introduce an independent mechanism for approving appointments to key State institutions, including the higher Judiciary.

Judges of the superior courts enjoy security of tenure and may only be removed through a constitutionally prescribed process involving Parliament on grounds of proved misbehaviour or incapacity, thereby protecting them from arbitrary Executive action.

Article 107(5) of the Constitution expressly stipulates that judges of the Supreme Court retire at the age of 65 years, while judges of the Court of Appeal retire at the age of 63 years. Because these retirement ages are entrenched in the Constitution, any alteration requires a constitutional amendment bill approved by Parliament in accordance with the Constitution.

Growth of the superior courts

For decades, Sri Lanka’s apex courts operated with fewer judges. However, as litigation increased, constitutional and commercial litigation expanded, and appellate delays grew, successive governments periodically increased the authorised number of judges, most recently through the 20th Amendment to the Constitution in 2020. 

The most significant recent expansion occurred through the 20th Amendment to the Constitution in 2020. The amendment increased the authorised strength of the Supreme Court from 11 judges to 17, while the authorised number of judges of the Court of Appeal was increased from 12 to 20 judges. The objective was to enhance judicial capacity and enable the two courts to dispose of cases more efficiently.

Despite this expansion, the authorised complement has not been fully utilised. According to the Bar Association of Sri Lanka (BASL), there are currently four vacancies in the Supreme Court and four vacancies in the Court of Appeal, while another vacancy in the Court of Appeal is expected shortly. Critics of the proposed amendment argue that these existing vacancies should first be filled before any consideration is given to extending the retirement age of sitting judges.

The vacancies have practical consequences for litigants. Constitutional matters, appeals, and Fundamental Rights (FR) applications are heard by multi-judge benches, and prolonged vacancies can delay the constitution of benches, resulting in postponed hearings and increasing backlogs.

Why has the proposal become controversial?

The reported proposal is understood to contemplate increasing the retirement age of Supreme Court judges from 65 to 67 years and Court of Appeal judges from 63 to 65 years, although the Government has yet to publicly table a constitutional amendment bill. Parliamentary questions have sought clarification on whether Cabinet approval has been granted and what policy grounds justify such a change.

The proposal has generated concern because constitutional provisions governing judicial tenure are regarded as important safeguards of judicial independence.

Legal scholars have long maintained that constitutional changes affecting serving judges should only be undertaken following careful policy evaluation, broad public consultation, and institutional consensus, in order to avoid any perception that reforms are intended to influence the composition or independence of the courts.

It is against this constitutional backdrop that the BASL, together with international legal organisations and several senior legal figures, has mounted strong opposition to the proposed amendment.

The BASL has taken the lead in articulating these concerns, arguing that the proposal is neither necessary nor appropriate in the present circumstances and warning that it could undermine public confidence in the Judiciary. 

‘Ad hoc’ constitutional amendment

Responding to an inquiry by The Sunday Morning, BASL Secretary Nalin De Silva said that the association opposed the proposed constitutional amendment because it considered the proposal to be “neither necessary nor appropriate at this time”.

“The association is concerned that altering the constitutionally prescribed retirement age of superior court judges without objective justification, broad discussion, and stakeholder consultation, or meaningful consultation, could undermine public confidence in the independence of the Judiciary,” De Silva explained.

According to him, the concerns surrounding the proposal have become even more significant because opposition has extended well beyond the BASL itself. “This is now more apparent with the BASL representing attorneys-at-law of Sri Lanka, many other professional associations, leading world law associations, and now the judges themselves having expressed strong objection to this proposal.”

The BASL also questioned the policy basis upon which the amendment was being pursued. De Silva charged that the proposal was absent from the Government’s election manifesto, had never been presented to the electorate as part of its mandate, and had not emerged in response to any sustained public demand.

“Furthermore, it is pertinent that (a) this new proposal is not found in the election manifesto of the Government, (b) does not arise from being a promise made to the people, (c) no one has called for this change, and (d) is proposed as a sudden, ad hoc, piecemeal amendment to the Constitution.”

He added: “The BASL maintains that constitutional reforms affecting the Judiciary should not be perceived as ad hoc measures or tailored to present circumstances, and will have the likelihood of weakening the rule of law, judicial independence, and the integrity of the legal system.”

‘An indispensable pillar of democracy’

The BASL stressed that judicial independence was fundamental to Sri Lanka’s constitutional order, arguing that courts served as an essential constitutional safeguard against the arbitrary exercise of State power.

“An independent Judiciary is a vital and indispensable pillar of democracy, as the check and balance to excesses of the State. An attack on the independence of the Judiciary is therefore a direct attack on the very concept and root of democracy.”

De Silva observed that international experience demonstrated the dangers of weakening judicial independence. “There are many examples from around the world where a less independent or non-independent judiciary has resulted in the complete breakdown of democratic institutions and the democratic way of life.”

Accordingly, he said that the association remained firmly of the view that no compelling justification currently existed to alter the constitutional retirement age.

Vacancies should be filled first

One of the BASL’s principal arguments concerns the existence of unfilled vacancies in both superior courts. De Silva pointed out that Parliament itself had already increased the authorised number of judges only a few years ago.

“In 2020, with the promulgation of the 20th Amendment, the number of judges in the Court of Appeal was increased to 20 and the number of judges in the Supreme Court was increased to 17.”

However, he noted that despite the expansion in judicial strength, appointments had not been made to all authorised positions. “At present we have four vacancies each for the appointment of judges in both the Court of Appeal and the Supreme Court that have not been filled for some time. In view of these, there cannot be a requirement to increase the age of retirement on the basis of a shortage.”

According to the BASL, the Government’s failure to fill existing vacancies fundamentally weakens the argument that extending judicial tenure is necessary to improve the functioning of the courts. “In fact, for several months, there have been four vacancies each in the Supreme Court and the Court of Appeal. If there was a genuine need to enhance the capacity of both these courts, would it firstly not make sense to fill these vacancies? The fallacy of the proposal is clearly evident, when on one hand the vacancies have not been filled for months, and on the other, an extension of the retirement ages of these same judges is being sought.”

The association therefore argues that appointments should be expedited before considering constitutional changes affecting judicial tenure.

Warning over perceptions of ‘court capture’

The BASL further warned that the process by which the amendment was being pursued could itself undermine public confidence in the administration of justice. 

Instead of proceeding with an isolated constitutional amendment, De Silva said that reforms concerning judicial tenure should only follow careful research, objective evaluation, and extensive consultation. “Any reform concerning judicial tenure and such other reforms should only follow careful study, objective evaluation, meaningful consultation with stakeholders, and broad public consultation.”

He cautioned that proceeding without such safeguards could create serious constitutional consequences. “If the amendment to the retirement ages of the judges is made this way, without a transparent process, it would result in allegations of ‘court capture’ by the Executive branch and furthermore result in democratic backsliding, which would be even more dangerous to the system of administration of justice.”

The BASL also questioned the motives behind the proposal. “The dangers and potential risks of this attempted amendment far outweigh any possible benefits,” De Silva claimed. “It is the concern of the Bar that such an amendment is proposed to further the collateral motives of the Executive branch and could eventually lead to deeper concerns regarding the backsliding of democratic principles and the loss of confidence of the public in the Judiciary.”

The association emphasised that public confidence depended not only on the actual independence of judges but also on the perception that constitutional safeguards were free from Executive influence.

“The independence of the Judiciary is a cornerstone of Sri Lanka’s constitutional democracy. Strong justice systems are not built by extending the tenure of individuals. They are built by strengthening institutions.

“A resilient judiciary is not one that depends upon the continued service of particular office-holders, however distinguished they may be. It is one that consistently attracts, appoints, and supports successive generations of judges of the highest ability, integrity, and independence.”

The BASL further warned that the proposed amendment itself may create an unfortunate public perception.

“The current matter in which this amendment is sought to be done, could even impress that this move is a gift forced upon the Judiciary, and such perceptions may undermine public confidence in the Judiciary’s independence, integrity, and impartiality, create unnecessary institutional uncertainty and constitutional controversy, and give rise to concerns about Executive interference in matters affecting the Judiciary.”

For these reasons, the association urged the Government not to proceed until a comprehensive, transparent, and evidence-based review had been completed, maintaining that constitutional reforms affecting the Judiciary should always be founded upon clear policy objectives, meaningful consultation, and broad democratic legitimacy.

CLA backs BASL concerns

The concerns raised by the BASL have since received international support, with the Commonwealth Lawyers Association (CLA) publicly endorsing the BASL’s position and urging the Government to reconsider the proposed constitutional amendment.

In a statement issued on 11 June, the CLA said that it had taken note of the BASL’s letter to President Anura Kumara Dissanayake expressing grave concern over reports that the Government was considering a constitutional amendment to increase the retirement age of judges of the Supreme Court and the Court of Appeal.

The association observed that the retirement age of superior court judges was presently fixed by Article 107(5) of the Constitution and that any change would require a constitutional amendment bill.

It stressed that constitutional amendments should not be introduced in a piecemeal or ad hoc manner, warning that doing so could diminish the sanctity of the Constitution. Instead, constitutional reform should be preceded by adequate public consultation and meaningful stakeholder engagement as an essential requirement of democratic due process.

The CLA further noted that the Constitution of Sri Lanka recognised the independence of the Judiciary and its central role in preserving the rule of law.

Referring to the Commonwealth Latimer House Principles on the Three Branches of Government, the association reiterated: “An independent, impartial, honest, and competent judiciary is integral to upholding the rule of law, engendering public confidence, and dispensing justice.”

The association also cited its Goa Declaration adopted in 2023, which states: “The independence and impartiality of the judiciary must be upheld and protected by governments, including under domestic laws, regulations, and policies.”

Against that backdrop, the CLA warned that any measure capable of diminishing public confidence in the Judiciary would be inconsistent with the rule of law.

Necessity of the proposal questioned

Former President of the BASL U.R. De Silva also questioned whether any genuine necessity existed to increase the retirement age of superior court judges. He argued that if the Government’s objective was to address delays in the administration of justice, the immediate priority should be to fill the vacancies that already existed in the Supreme Court and the Court of Appeal rather than extending the tenure of sitting judges.

De Silva pointed out that Parliament had already expanded the authorised strength of both courts through the 20th Amendment, providing sufficient judicial positions to strengthen the appellate system. He said that the present difficulty arose because these positions remained vacant.

According to De Silva, the Supreme Court currently has four vacancies while the Court of Appeal also has four vacancies, with another vacancy expected shortly. Those vacancies, he said, had made it increasingly difficult to constitute benches, leading to repeated postponements of appeals and other proceedings.

He explained that Supreme Court matters generally required benches of at least three judges, while Court of Appeal matters were ordinarily heard by two-judge benches. When sufficient judges are unavailable, cases cannot proceed, causing litigants to wait several additional months and sometimes more than a year before their cases are relisted.

De Silva maintained that appointments to the superior courts should not be delayed on the basis that vacancies also exist among magistrates or other judicial officers. Appointments to the Supreme Court and Court of Appeal, he said, should proceed independently through nominations made by the President to the Constitutional Council.

He also raised another constitutional issue which, in his view, had received insufficient attention. If Parliament were to proceed with the constitutional amendment, he observed, it was almost certain that the legislation would be challenged before the Supreme Court. 

Such litigation could place serving judges in the unprecedented position of determining the validity of legislation directly affecting their own tenure. According to De Silva, that situation could itself generate controversy regarding judicial propriety and public confidence, irrespective of how the cases are ultimately decided.

Rather than focusing on extending judicial tenure, he suggested that broader institutional reforms should be considered, including expanding the jurisdiction of the High Courts to hear certain categories of FR cases. He argued that litigants currently waited many years before obtaining judgments in FR applications, reducing the practical value of those remedies.

Political opposition grows

The proposed amendment has also attracted criticism from political leaders across the spectrum.

Former President Ranil Wickremesinghe, responding to questions during the inaugural ‘Read with Ranil’ youth dialogue in Colombo, said the proposal had already generated considerable controversy within the legal profession. “There is a big controversy at the moment,” he observed.

Noting that many members of the legal profession, including judges themselves, were opposed to extending the retirement age beyond 65 years, Wickremesinghe questioned how far the Government intended to proceed despite growing resistance. “The more the Government pushes, it may be compromising the neutrality of the Judiciary,” he warned.

While acknowledging that the decision ultimately rested with the Government, Wickremesinghe predicted that proceeding with the amendment would likely provoke increasing opposition from both political and non-political groups.

Meanwhile, Opposition Leader Sajith Premadasa sought clarification from the Government in Parliament regarding the proposal, describing it as an issue of national importance because of its implications for judicial independence and public confidence.

Speaking under Standing Order 27(2), Premadasa called upon the Government to present any official policy studies, requirement assessments, or evidence-based reports relied upon to justify increasing the retirement age of superior court judges.

He questioned how the proposal could be justified when the 20th Amendment had already increased the authorised number of judges in both the Supreme Court and the Court of Appeal.

Premadasa also referred to the concerns expressed by the BASL, warning that extending judicial tenure without a clearly defined policy framework could undermine public confidence in judicial independence. He further asked whether the Ministry of Justice had consulted the Judicial Service Commission and other professional stakeholders before formulating the proposal.

Drawing attention to the existing vacancies in the superior courts, Premadasa questioned why the Government had prioritised extending retirement ages instead of immediately filling vacant judicial positions at a time when litigants continued to experience significant delays and mounting case backlogs.

He also cautioned that such constitutional amendments could establish a precedent under which future governments may seek to alter the composition of the Judiciary for political purposes.

AG’s Dept. stays silent

Meanwhile, when The Sunday Morning sought a comment from the Attorney General’s Department on the proposed constitutional amendment, a senior official declined to comment, stating that if the bill were to be challenged before the Supreme Court, the department would be required to defend it, making it inappropriate to express a public view at this stage.

Govt. stance 

Meanwhile, Cabinet Spokesman and Minister Dr. Nalinda Jayatissa said that the Government had not taken a final decision on a proposal to increase the retirement age of judges, stressing that Cabinet had only held a preliminary discussion and requested a report from the Justice Ministry before proceeding. 

He added that the proposal was being examined in light of judicial backlogs, delays in the administration of justice, shortages of judicial officers, professional migration, and increasing life expectancy. 

Jayatissa added that stakeholder views would be taken into account before a decision was reached. He also noted ongoing recruitment challenges, saying that although the Government had intended to appoint 50 magistrates, only 33 had been recruited due to a lack of suitably qualified applicants.

However, when contacted regarding Minister Jayatissa’s statement that the Government was studying the proposal, Justice Ministry Secretary Ayesha Jinasena, PC said that she was not aware of any such study or of a proposal having been received by the ministry as of Thursday (16) evening.