Constitutions are written not because governments lack power but because power requires boundaries. They establish the relationship between the Legislature, the Executive, and the Judiciary, assigning each its own sphere of responsibility while ensuring that none becomes supreme over the others. 

Most constitutional debates concern one of these institutions. Occasionally they involve two. Rarely does a single constitutional proposal bring all three into the same constitutional question. The present proposal to amend the Constitution by extending the retirement age of superior court judges appears to do precisely that. 

This constitutional arrangement deserves careful reflection, not because it necessarily implies wrongdoing by any institution, but because it raises an important question about constitutional design itself. A constitutional democracy depends upon more than the integrity of those who hold office. It depends equally upon public confidence in the institutions through which constitutional power is exercised. 

The deeper constitutional question

For centuries, legal systems have recognised a simple but profound principle. Justice must not only be done; it must also be seen to be done. 

This principle is often misunderstood. It is not based upon suspicion of judges. On the contrary, it exists because public confidence in the Judiciary is too valuable to depend solely upon personal integrity. A judge may decide a matter with complete honesty and perfect impartiality. Yet if the circumstances naturally lead the public to wonder whether an institutional interest exists, confidence in the institution itself may be affected. 

The issue is therefore not the character of individual judges. It is the design of constitutional institutions. This distinction is important. Constitutional morality asks governments to avoid creating situations in which constitutional institutions are unnecessarily placed under public suspicion. A well-designed constitution does not merely protect the independence of institutions. It also protects the appearance of their independence. 

The present debate illustrates why this distinction matters. Supporters of the proposal argue that the retirement age of judges is a matter of public policy and constitutional reform. Opponents raise concerns that the proposal directly affects those who may ultimately be required to consider its constitutional validity. 

Whether one agrees with either position is not the central issue. The deeper constitutional question is whether constitutional arrangements should place any institution in such a position in the first place. 

This question extends beyond the Judiciary. The Executive should be able to govern without creating unnecessary doubts about constitutional propriety. The Legislature should exercise its constitutional authority in ways that strengthen rather than weaken public confidence. The Judiciary should be protected from circumstances that expose it to questions which constitutional design itself ought to prevent. 

Seen from this perspective, the present controversy is no longer simply about the retirement age of judges. It becomes a reflection upon the relationships between the three great institutions of constitutional government. Constitutions are intended to reduce unnecessary constitutional tensions, not create them. 

Perhaps this controversy therefore offers Sri Lanka an opportunity that extends beyond the immediate proposal. It invites us to ask whether our constitutional arrangements adequately protect not only the powers of our institutions but also the confidence that citizens place in them. 

That question deserves thoughtful reflection regardless of how the present debate is eventually resolved. The health of a constitutional democracy depends not only upon the decisions its institutions make but also upon the constitutional wisdom that prevents those institutions from being placed in situations where public confidence itself becomes part of the controversy. If that is the lesson we draw from the present debate, this constitutional moment may ultimately strengthen rather than weaken Sri Lanka’s democratic tradition. 

From constitutional amendment to constitutional culture 

We considered an unusual constitutional situation in which a proposed amendment concerning the retirement age of superior court judges simultaneously engages all three great institutions of government. The Executive proposes the change, the Legislature is required to approve it, and the Judiciary may be called upon to examine its constitutional validity. 

That situation raises an immediate question about institutional independence and public confidence. But it also raises a much larger question: is this merely another constitutional amendment, or should we look at it as part of a longer constitutional experience? 

To answer that question, we need to step back from the present controversy. Sri Lanka has lived under several constitutional orders since independence. 

The 1972 Constitution replaced the earlier Soulbury constitutional framework and established a new republican system. The 1978 Constitution then created an executive presidency and fundamentally reorganised the relationship between the Executive, the Legislature, and the Judiciary. These were not merely amendments to an existing constitutional arrangement. They represented major changes in the structure of the State. 

The experience under the 1978 Constitution is particularly instructive. It has been amended repeatedly. Some amendments have strengthened the authority of the Executive. Others have attempted to restrain it. Some have altered electoral arrangements. Others have changed the relationship between the centre and the provinces or affected the independence of constitutional institutions. 

Consider only a few examples. The Third Amendment in 1982 changed the constitutional provisions relating to the president’s term and the possibility of seeking a further mandate before the completion of the first term. The Fourth Amendment extended the life of the first Parliament. These were significant changes to the relationship between political power, electoral mandates, and constitutional time. 

The 13th Amendment in 1987 introduced Provincial Councils and fundamentally changed the distribution of governmental powers between the centre and the provinces. It also introduced important changes relating to language. Whatever one’s political judgement about the 13th Amendment may be, its constitutional significance is undeniable. 

The 17th Amendment in 2001 moved in another direction. It established the Constitutional Council and strengthened a number of independent commissions, including arrangements relating to elections, the public service, the Police, and the Judiciary. It represented an attempt to place greater institutional restraints upon the exercise of political power.

The 18th Amendment in 2010 then moved substantially in the opposite direction, altering the constitutional framework relating to the presidency and removing the previous limitation on the number of presidential terms. The 19th Amendment in 2015 again moved towards limiting presidential power and strengthening institutional checks. 

The 20th Amendment in 2020 reversed many of those changes and restored greater authority to the Executive. The 21st Amendment in 2022 subsequently sought once again to strengthen checks and balances and independent institutions. 

One does not have to decide here whether any particular amendment was right or wrong. That is not the purpose of this essay. What is striking is the pattern. Power is strengthened. Then power is restrained. Then some of those restraints are removed. Then some are restored. The constitutional pendulum moves. And when this happens repeatedly, something more important than the wording of individual amendments begins to develop. A constitutional culture begins to emerge. 

This is where the distinction between constitutional law and constitutional culture becomes important. Constitutional law tells us how the Constitution may be amended. Constitutional culture tells us how those possessing the power to amend the Constitution have come to think about that power. The first is a matter of legal procedure. The second is a matter of political morality. 

The question of constitutional morality

Sri Lanka’s Constitution itself recognises that amendment is a special constitutional process. Article 82 requires constitutional amendments to follow specific procedures, including a two-thirds majority of the whole membership of Parliament. In certain circumstances, the Constitution also requires approval by the people at a referendum. 

However, constitutional legality is only the beginning of the question. A government may possess the required majority. A bill may satisfy the required procedure. An amendment may therefore be perfectly lawful. Yet another question remains: what happens to a constitution when those who possess the legal power to change it begin to regard that power as an ordinary instrument for solving political problems? 

This is the question that we believe deserves much greater attention. A constitutional amendment does not merely change a provision. It also creates a precedent. That precedent becomes available to future governments. 

A government today may use constitutional power for a purpose that appears reasonable in the circumstances of the day. A future government may then point to that very amendment as evidence that the same constitutional power can be used for a completely different purpose. The danger therefore does not necessarily lie in one amendment. It may lie in the accumulation of precedents. 

The lesson for Sri Lanka is not that constitutional amendment is undesirable. Nor is it that the Constitution should become incapable of change. The lesson is more subtle: the power to amend the Constitution should itself be exercised constitutionally. 

That may sound obvious, but it contains a profound principle. To exercise a constitutional power constitutionally means more than satisfying the formal requirements of the Constitution. It means asking whether the exercise of that power is consistent with the purpose for which constitutional government exists. 

This brings us back to the present controversy. The question before the country is not merely whether the retirement age of superior court judges should be changed. Nor is it merely whether the present Government has the parliamentary strength required to make the change. The larger question is what constitutional precedent this moment creates. 

If governments learn that constitutional provisions concerning independent institutions can be altered whenever political circumstances make such changes desirable, future governments will inherit not merely the amended provision but the constitutional habit behind it. 

That is why this particular controversy deserves attention beyond the immediate question of judicial retirement. It brings together the Executive, the Legislature, and the Judiciary in a way that makes the importance of constitutional restraint particularly visible. And this leads us to what may be the most important distinction in this entire discussion. 

A constitution can be protected in two ways. It can be protected by rules. And it can be protected by restraint. Rules tell governments what they must do before changing the constitution. Restraint tells governments what they ought not to do even when they possess the legal power to do it. 

No constitution can rely entirely upon rules. There will always be circumstances in which the law permits an action but constitutional wisdom suggests caution. That is where constitutional morality begins. The real strength of a constitution therefore cannot be measured only by the number of safeguards written into its text. It must also be measured by the willingness of those who possess political power to respect the limits and purposes of those safeguards. This, we believe, is the deeper lesson that Sri Lanka’s constitutional experience offers. 

The problem is not that we have amended the Constitution. The problem would arise if we gradually become a society in which every political difficulty is expected to find its solution in another constitutional amendment. When that happens, amendment ceases to be an exceptional constitutional remedy and becomes an ordinary language of politics. 

And once that happens, the Constitution itself begins to change character. It is no longer seen primarily as the framework within which political power operates. It begins to be seen as something that political power can continually reshape. That is the point at which constitutional amendment becomes constitutional culture. 

And that, perhaps, is the question Sri Lanka should now ask itself. Not whether this amendment or that amendment is politically desirable. Not whether one government or another has been right or wrong. But something much more fundamental: what kind of constitutional culture are we creating for those who will govern Sri Lanka after all of us have gone?

(The writer is a retired corporate executive with over five decades of managerial experience in both the public and private sectors. He served as the Managing Director of a leading Sri Lankan company for more than 35 years before retiring. In the later years of his career, he pursued academic studies in Buddhism, earning both a Master’s degree and a Doctorate in Buddhist Studies from the University of Kelaniya. He is the author of two books: ‘Apannaka,’ which applies insights from the Apannaka Jataka to business management, and ‘Arya Rajya Kara,’ a work on political philosophy rooted in Buddhist thought)

(The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication)