Judges’ Age Special What Happens Now?
From Parliament to the Supreme Court – and perhaps ultimately to the People: NewsLine explains the constitutional road ahead for the Government’s controversial judicial retirement-age proposals
COLOMBO, Sunday – Amid the increasingly heated argument over the Government’s proposal to extend the retirement ages of Sri Lanka’s judges, one important fact risks being obscured: the controversy is taking place within a constitutional process which itself provides the mechanism by which the disagreement must ultimately be resolved.
The Government proposes increasing the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65 through the proposed 22nd Amendment to the Constitution.
A companion amendment to the Judicature Act proposes increasing the retirement age of High Court judges from 61 to 63, fixing the retirement age of other judges and magistrates at 62, and increasing the maximum number of High Court judges from 110 to 120.
The two Bills are scheduled to be presented to Parliament on Tuesday, August 18.
That is where the next constitutional stage begins.
First Bill Enters Parliament
Once the proposed constitutional amendment is placed on Parliament’s Order Paper, citizens have the constitutionally prescribed opportunity to challenge it before the Supreme Court.
That is not an extraordinary intervention in the legislative process.
It is the process.
The Constitution deliberately gives the Supreme Court jurisdiction to examine Bills before enactment and determine whether their provisions are consistent with the Constitution and, where they are not, what special procedure is required for them to become law.
Given the controversy surrounding the judges’ retirement-age proposal, a Supreme Court challenge appears highly likely.
Then Comes the Supreme Court
The Court’s job would not be to decide whether 67 is a better retirement age than 65.
Nor would it decide whether retaining experienced judges is administratively desirable.
Those are essentially policy questions.
The constitutional question is different.
The Court would examine whether the proposed amendment can validly be enacted through the constitutional-amendment procedure requiring a two-thirds majority in Parliament, or whether its provisions also affect one of the entrenched constitutional protections that can be changed only with the approval of the People at a referendum.
That distinction lies at the heart of the entire controversy.
Why Two-Thirds Is Already Necessary
The retirement ages of Supreme Court and Court of Appeal judges are presently contained in Article 107 of the Constitution.
Changing those ages therefore requires changing the Constitution itself.
A constitutional amendment requires the support of at least two-thirds of the whole membership of Parliament.
In the present 225-member Parliament, that means at least 150 votes.
But the opponents of 22A argue that 150 votes may not be enough.
Why Is Everyone Talking About a Referendum?
Article 3 declares that sovereignty is in the People and is inalienable.
Article 4 explains how that sovereignty is exercised, including through the judicial power of the People exercised through the courts.
Article 3 enjoys special constitutional protection. If an amendment is inconsistent with it, Article 83 requires not merely a two-thirds parliamentary majority but approval by the People at a referendum.
This is the foundation of the opposition argument.
It is important, however, to understand precisely what that argument is.
Article 107 – which contains judicial retirement ages – is not itself among the provisions expressly protected by the referendum requirement.
Opponents instead argue that altering the tenure of serving superior-court judges affects judicial independence; judicial independence is essential to the exercise of the People’s judicial power; and interference with that independence therefore engages Article 3.
If that reasoning is accepted, a referendum becomes necessary.
If it is rejected, the referendum requirement could fall away.
The 2022 Determination
Those opposing the present proposal rely heavily upon an earlier Supreme Court Special Determination delivered in 2022.
The significance of that determination lies in the Court’s treatment of changes affecting the retirement age or tenure of incumbent superior-court judges.
The argument now being advanced is that altering the tenure of judges already holding office affects judicial independence and consequently the sovereignty protected by Article 3.
The Bar Association of Sri Lanka has placed considerable reliance upon that reasoning in opposing the present amendment.
But the present 22nd Amendment has not yet been determined by the Supreme Court.
That distinction matters.
Previous constitutional reasoning will undoubtedly be placed before whichever judges hear a challenge to 22A. The Court will nevertheless have to determine the constitutionality of the actual Bill now before Parliament.
Why Sitting Judges Matter
Perhaps the most difficult issue concerns incumbency.
There is a considerable difference between Parliament saying:
“Future Supreme Court judges shall retire at 67,”
and Parliament saying that judges presently serving until 65 may now remain until 67.
The first changes the conditions applicable to future appointments.
The second alters the tenure of identifiable judges already holding constitutional office.
Opponents argue that this creates both an independence issue and a problem of public perception.
There is an additional complication.
If the present amendment is challenged, Supreme Court judges may be required to determine the constitutionality of legislation from which members of their own Court could potentially benefit through longer tenure.
No allegation of actual bias necessarily follows.
The concern is about appearance and public confidence.
That is why some critics argue that prospective application would substantially reduce the controversy.
But Is Extending Tenure Really Interference?
That question deserves to be asked as well.
Judicial independence traditionally protects judges against improper removal, pressure and interference with their ability to decide cases impartially.
The Government can therefore argue that uniformly extending retirement ages does not remove anybody, reduce anybody’s tenure or subject continued service to executive discretion.
Quite the opposite: every judge in the affected category receives the same additional period.
People live longer. Professional careers have lengthened. Experienced judges represent an enormous investment of knowledge and institutional memory.
There is consequently a perfectly respectable policy argument for reconsidering retirement ages fixed many years ago.
The constitutional argument is whether doing so for judges already serving crosses a different line.
That is the question the Supreme Court may ultimately have to answer.
What If the Court Says a Referendum Is Required?
The Government would then face choices.
It could proceed with the constitutional amendment, obtain the necessary two-thirds majority in Parliament and submit the proposal to the People.
Alternatively, Parliament could consider amendments capable of removing the constitutional problem identified by the Court.
Depending upon the Court’s reasoning, that could conceivably include transitional arrangements concerning sitting judges.
What Parliament could not legitimately do would be simply to ignore a Supreme Court determination that a referendum was constitutionally necessary.
There is presently nothing to suggest that the Government intends to do so.
And If the Court Says Two-Thirds Is Enough?
Then the constitutional position changes dramatically.
If the Supreme Court determines that extending the retirement ages does not violate Article 3 and therefore does not require approval at a referendum, the Government could proceed with 22A provided it obtains the required two-thirds parliamentary majority.
The political controversy would not disappear.
The BASL could continue opposing it.
Civil society could continue criticising it.
Religious leaders and Opposition parties could continue demanding its withdrawal.
But the particular legal argument that the Constitution requires a referendum would have been determined by the institution to which the Constitution entrusts that question.
That distinction is fundamental.
Something may be constitutional without being wise.
Something may be politically unpopular without being unconstitutional.
Has the Government Bypassed the Constitution?
On the presently available facts, that would be difficult to sustain.
The Government obtained Cabinet approval, published the proposed legislation in the Gazette and is taking the Bills to Parliament.
The constitutional machinery thereafter permits challenges before the Supreme Court.
There has so far been no Government announcement suggesting that it intends to prevent such challenges, disregard a Supreme Court determination or circumvent a referendum should the Court determine that one is necessary.
That does not answer the objections to the substance of 22A.
Nor does it answer criticism concerning consultation, incumbency, judicial independence or public confidence.
It simply means those criticisms should be distinguished from an allegation that the constitutional process itself is already being circumvented.
So What Exactly Are We Arguing About?
Strip away the political noise and there are really four questions.
Should Sri Lankan judges work for another two years?
That is principally a policy question.
Should the change apply to judges already sitting?
That raises much more serious questions concerning tenure, independence and perception.
Does applying it to incumbent superior-court judges engage Article 3?
That is a constitutional question which the Supreme Court may soon have to answer.
And finally:
If Article 3 is engaged, should the People decide?
The Constitution itself supplies the answer.
If the Supreme Court determines that Article 83 applies, they must. That is why the coming weeks could prove more important than
the argument which preceded them.
Sri Lanka is not merely debating how old a judge should be.
It may shortly be testing how constitutional disagreement itself is supposed to be resolved.
Be that as it may.
