- The retirement age of Judges of Superior Courts is fixed in the Constitution, and that’s a guarantee of judicial independence
- Increasing the retirement age would have a serious detrimental effect on the legitimate promotional expectations of judges of subordinate courts
The Government's proposal to increase the retirement age of Superior Court (Supreme Court [SC] and Court of Appeal [CA]) Judges has emerged as one of the most contentious judicial reforms in recent months, drawing strong reactions from the legal fraternity, the Opposition, and the civil society. The proposal, which received Cabinet of Ministers approval on Monday (27), has been defended by the Government as a measure to help address the mounting backlog of cases in the country's courts. However, the Bar Association of Sri Lanka (BASL), Opposition parties, and several other stakeholders have voiced strong opposition, with some also questioning the timing of the move and expressing concerns over its potential impact on judicial independence and the career progression of judges.
The debate has also been fuelled by allegations from sections of the Opposition and the legal community that the proposal could be aimed at extending the tenure of the Chief Justice (CJ) Preethi Padman Surasena, a claim that has intensified public discussion over the issue. Against this backdrop, questions have been raised about whether extending the retirement age would genuinely improve the administration of justice or merely delay long-overdue structural reforms needed to address chronic delays in the judicial system.
Speaking to The Daily Morning, the former Permanent Justice Ministry Secretary Dr Nihal Mahendra Sudrikku Jayawickrama, who also serves as the Rapporteur of the United Nations-sponsored Judicial Integrity Group that formulated the Bangalore Principles of Judicial Conduct, said that increasing the retirement age of judges would do little to resolve the country's case backlog. He maintained that altering the constitutionally guaranteed tenure of Superior Court Judges outside the context of broader constitutional reform could have serious implications for judicial independence and the promotional prospects of lower court judges.
Following are excerpts of the interview:
What is the current retirement age for judges in Sri Lanka (all categories)? Which legal provisions govern it – the Constitution or any other statute?
Article 107(5) of the Constitution of 1978 (as amended) states that, "The age of retirement of Judges of the SC shall be 65 years and of Judges of the CA shall be 63 years". The Judicature Act, No. 2 of 1978 (as amended) has fixed the age of retirement of Judges of the High Courts (HCs) at 61 years. Under the Public and Judicial Officers (Retirement) Ordinance, No. 11 of 1910 (as amended), the age of retirement of Judicial Officers has been fixed at 60 years.
Has the retirement age for judges changed over the years, or has it remained the same since it was first introduced? If it has changed, how has it evolved?
It is a fundamental tenet of judicial independence that a judge of the highest court should have a constitutionally guaranteed tenure. It could be for life, until a mandatory retirement age, or the expiry of a fixed term of office. That is a guarantee of judicial independence. The retirement age of Judges of the SC has always been determined at the stage of drafting a new Constitution. The 1947 Constitution fixed the retirement age of Judges of the SC at 62 years, with provision for the Governor-General to permit a Judge who had reached the age of 62 "to continue in office for a period not exceeding 12 months". That provision was probably inserted by the British Government having regard to the interests of members of the colonial judicial service who were serving on the SC at the time. That extension power was never used. When the 1972 Constitution was being drafted, it was decided to omit that discretionary power of the Government to grant selective extensions of service to judges of their choice. Instead, the retirement age of Judges of the SC was fixed at 63 years. The 1978 Constitution abolished the SC, replaced it with a new SC and a CA, and from what Dr Colvin Reginald de Silva has described as “the witches’ cauldron”, President Junius Richard Jayewardene picked out 11 Judges, distributed them to the two Appellate Courts, without regard to seniority, experience or age, excluded eight Judges, and then increased the retirement age of the chosen ones to 65 years and 63 years, respectively. That is the position today.
What is the retirement age for judges, particularly judges of the superior courts, in countries with comparable judicial systems such as India, the UK and South Africa?
In 1776, the US Constitution stated that Judges of the SC "shall hold their offices during good behaviour". No age limit was prescribed. In Canada and the UK, it is 75 years. However, in Asian, African and Caribbean countries, it varies from 62 in Botswana, Belize and Guyana to 65 in India, Pakistan, Nepal, Singapore, Turkey and Bhutan, and to 66 in Malaysia. It is unsafe to look to other countries for guidance. For instance, in many of the States in the US, judges are elected. Even the appointment of Judges to the SC is a political exercise, where the President nominates and the Senate is required to approve or reject the nominee. In several South and Central American countries, the CJ is elected by the Judges themselves for a specified rotating period. In the UK, until recently, the highest Court was the House of Lords.
When a vacancy arises in the higher Judiciary, is there any constitutional or legal requirement specifying the time frame within which that vacancy should be filled?
The Constitution has fixed the number of Judges in the SC and the CA, in the expectation that that prescribed number would constitute the two Courts at any given time. Whenever a vacancy occurs, it has been the invariable practice to fill that vacancy on the next day. In the Justice Ministry, where I served for seven years, we would determine well in advance who would fill a vacancy immediately it occurs. The new judge would be sworn in on the day following the retirement of their predecessor.
The Government has claimed that a large backlog of cases has accumulated and many of its representatives have suggested that increasing the retirement age of judges would help address the problem. In your view, is this a practical and effective solution?
That is absolute nonsense. Litigation is not expedited by establishing more courts and appointing more judges or extending their retirement dates. Litigation is expedited by reforming the procedure, as we did through the Administration of Justice Laws of 1973 and 1975. The reference of every civil dispute to a Conciliation Board before proceeding to a court; evidence through affidavits instead of by examination-in-chief; a pre-trial conference; hearings from day-to-day with no postponements except in the event of a family bereavement; written submissions in the appellate courts; oral arguments limited to 30 minutes (as is the procedure in the US SC); and the listing of appeals in the order in which they had been filed, were some of the reforms which we introduced to expedite civil litigation. Similarly, the abolition of non-summary proceedings was one of the many reforms in criminal procedure. Research conducted by Dr Neelakandan Tiruchelvam revealed that in three years, 53 per cent of civil disputes had been resolved in Conciliation Boards, without the appearance of lawyers, and therefore did not reach the courts. With the change of Government in 1977, under severe pressure from the legal profession, the new Government repealed the reform legislation and restored the criminal and civil procedure laws of the 1880's.
Certain parties including Government representatives have claimed that many countries have increased the retirement age of judges in recent years. How do you see that?
I’m not aware of such a global trend.
Why do you think that judges in the lower courts, including District Judges and Magistrates, appear to be opposing proposals to increase the retirement age?
After over 25 or 30 years of wandering from one judicial division to another, they probably wish to settle down and enjoy family life. So too the HC Judges who are also reported to have objected to any extension of their tenure. It has not been reported that Judges of the SC have ever requested an extension of their retiring age, probably because of the fact the extremely lucrative world of arbitration is at their feet from the moment of retirement, in addition to receiving 90% of their salary in the form of a monthly pension. There is now a further incentive provided by a recent judgement of the SC itself that if a retiring Judge chooses to draw a commuted pension on retirement; i.e. an advance payment of a sum equivalent to say 50% of the monthly pension due to them in the first 24 months following retirement, that advance payment can’t thereafter be recovered by the Government from their monthly pension because, according to the judgement, Article 108 states that the pension entitlement of a SC Judge shall not be reduced. That is, after taking a substantial portion of their future pension in advance, the State is nevertheless required to pay their full pension thereafter; a loan which a retiring Judge of the SC is not required to repay; a privilege not accorded to judges of lesser rank or other members of the public service.
The Government has stated that there are similar demands from other sectors to increase the retirement age. Do you think that those arguments are relevant when considering the Judiciary?
The retirement age of Judges of Superior Courts is fixed in the Constitution. That is a guarantee of judicial independence. Other sectors, such as the public service, legal officers and medical personnel, are subject to Governmental control, and their terms of service may be altered.
Should the retirement age of Superior Court Judges be increased at any point? If so, under what circumstances should it be done, and what constitutional or legal process would need to be followed?
The time for considering any such change is when a new Constitution is being drafted. In its manifesto, the National People's Power (NPP) promised to draft and adopt a new Constitution that would replace the present Executive Presidency and restore Parliamentary governance. That would be the occasion to consider whether or not to make changes in the terms of office of judges.
Under the existing legal framework, is it possible to grant service extensions to judges without formally increasing the retirement age?
No. In any event, granting an extension of service to a Judge of a Superior Court would ordinarily be seen as preferential treatment, an interference with the independence of the Judiciary.
If the retirement age of Superior Court Judges is increased, what impact would that have on the career progression and promotion prospects of judges serving in the lower courts?
It would have a serious detrimental effect on the legitimate promotional expectations of judges of subordinate courts.
Apart from increasing the retirement age and appointing more judges, what other reforms would you recommend to reduce the backlog of cases in Sri Lanka's courts?
Increasing the retirement age and appointing more judges will have no real impact on the backlog of cases. The reason for the scandalous delay in the hearing and disposal of cases is that they aren’t heard from day to day, as they should be, but are postponed over a period of several years in most instances. The law should require (as it did in the Administration of Justice Laws of 1973 and 1975) that a postponement of a trial should be granted only in the event of a family bereavement. All evidence should be tendered in affidavit form, and a witness should be called only for cross-examination. In criminal matters, non-summary proceedings should be abolished, and a Director of Public Prosecutions should be appointed in the Attorney-General’s (AG) Department to supervise criminal investigations and to determine the forum for the trial. Written submissions should be filed in the appellate courts, and oral submissions should be limited to 30 minutes for each party. Appeals should be listed for hearing in the order in which they have been filed, and no postponements should ordinarily be granted.
What do you consider to be the most pressing challenges currently facing Sri Lanka's judicial system?
Delays of scandalous proportions. That can’t be resolved by extending the term of office of Appellate Court Judges. The problem is one of procedure, and that requires legislative action.
Some parties allege that the proposal to increase the retirement age is intended to keep the current CJ in office for a longer period. What is your response to that allegation?
That is the public perception, and that public perception is creating tremendous damage to the independence and integrity of our judicial system. If it is the policy of the present Government to extend the tenure of the CJ (and other judges), why was that benefit not extended to former CJ, President’s Counsel Murdu Nirupa Bidushinie Fernando, who was appointed by, and retired during, this Government?
The Government has not taken a clear position on introducing a new Constitution. What are your views on the need for constitutional reform at this stage?
The abolition of the Executive Presidency and the restoration of the Parliamentary form of Government is the urgent need. For 30 years we had a Parliamentary system of Government. We had regular General Elections when Governments were often changed, thereby demonstrating that Sri Lanka was a flourishing democracy. There was no anti-terrorism legislation, but, successive Governments were able to deal effectively with a Hartal in 1952, an attempted military coup in 1962, and the Janatha Vimukthi Peramuna insurgency in 1971, using powers under the Public Security Ordinance, No. 25 of 1947 (as amended). At no time did the country face a financial crisis of such proportions as that of 2022. The Sri Lankan Judiciary enjoyed a world-wide reputation for its independence and integrity. The downward spiral towards authoritarianism, corruption, interference with judicial integrity, and ethnic conflict commenced with the establishment of the Executive Presidency. At the time of the Presidential and General Elections, the NPP committed itself to drafting and adopting a new Constitution that would restore Parliamentary governance. That would be the occasion to consider whether judicial terms should be extended.
Do you believe that there should be a regulatory mechanism governing the legal fees charged by lawyers? If so, what form should such regulation take?
That has always been my view. I brought up the subject for discussion when I was the Secretary of the Bar Council in 1969. When I was Permanent Secretary to the Ministry, I prepared a Cabinet paper on the subject, which did not even reach the Cabinet because of the intervention of leading members of the Bar. In 1980, the Special Presidential Commission found me guilty of attempting to undermine the legal profession.
The views and opinions expressed in this column are those of the interviewee, and do not necessarily reflect those of this publication