Opposition challenges the case-backlog argument for extending judges’ retirement ages, but the more important question is whether keeping superior court judges longer actually addresses where Sri Lanka’s judicial delays occur
COLOMBO, Monday – The Government’s proposal to extend the retirement age of judges of Sri Lanka’s Supreme Court and Court of Appeal is increasingly moving beyond the question of age itself, with opponents challenging whether the enormous backlog of cases across the country provides sufficient justification for changing the constitutionally prescribed retirement ages of superior court judges.
Former Justice Minister Prof. G.L. Peiris has been among the strongest critics of the proposal, arguing that extending the retirement age of superior court judges raises constitutional questions serious enough to require approval at a referendum. The Judicial Service Association and the Bar Association of Sri Lanka have also expressed opposition to changing the existing arrangements.
The Government’s argument has included the need to improve the efficiency of the judicial system and address delays, while the number of unresolved cases across Sri Lanka’s courts has featured prominently in the wider discussion. Yet that raises an important question which deserves considerably greater scrutiny: where exactly are those cases pending?
The distinction matters because the proposed constitutional amendment concerns judges of the Supreme Court and Court of Appeal.
If the overwhelming majority of unresolved cases are instead concentrated in Magistrates’ Courts, District Courts,
High Courts and other parts of the judicial structure, extending the working lives of judges at the apex of the system cannot by itself provide an answer to the larger backlog.
The Government has already moved separately to increase the authorised number of superior court judges. The cadre of the Court of Appeal was previously increased from 12 to 20 and that of the Supreme Court from 11 to 17, a factor which the Bar Association has itself cited in questioning whether there is a compelling workload-based requirement for extending retirement ages.
There is therefore a relatively straightforward way to improve the quality of the debate. The Government and judicial authorities could publish a court-by-court breakdown showing the number of pending cases, their average age, annual filings, annual disposals and the number of judges available to hear them.
Such information would allow Parliament and the public to distinguish between two very different propositions. One is that experienced judges should be retained for longer because their expertise is valuable to the administration of justice. The other is that increasing their retirement age is necessary to solve Sri Lanka’s case backlog.
Those arguments are not necessarily the same.
The experience of other Commonwealth jurisdictions also demonstrates that changes to judicial retirement arrangements need not be treated merely as administrative housekeeping.
In the United Kingdom, for example, the decision to increase the judicial retirement age followed consultation and consideration of recruitment, retention and diversity within the judiciary.
Prof. Peiris has specifically pointed to that process in arguing that Sri Lanka has not undertaken comparable public consultation.
The controversy is unlikely to disappear simply because the Bill has now been published. If anything, gazetting the proposed constitutional amendment makes scrutiny of the rationale behind it more important.
And, be that as it may, if a million pending cases are to be invoked in support of reforming the judiciary, the public is entitled to know where that million is actually waiting.
