Earlier ruling suggests changing retirement age of incumbent superior court judges would require a referendum
COLOMBO, Tuesday – As the Government prepares to proceed with legislation extending the retirement age of judges of the Supreme Court and Court of Appeal, attention is increasingly turning to a Supreme Court determination delivered in 2022 which appears to address the constitutional issue now at the centre of the national debate.
The decision arose not from a challenge to judicial retirement ages but during the Supreme Court’s consideration of the Inland Revenue (Amendment) Bill, when several judges’ associations argued that imposing income tax upon judges would undermine judicial independence.
The Court rejected that argument, holding that judges were not exempt from paying taxes that applied generally to all citizens. It ruled that a non-discriminatory tax did not amount to an attack upon judicial independence and that judges, like all other citizens, were required to contribute to the public finances of the State.
However, before concluding its determination, the Court addressed a separate argument advanced on behalf of the petitioners- one which has assumed fresh significance in light of the Government’s present proposal.
Counsel had argued that if Parliament could indirectly affect judges through legislation of general application, the same reasoning might one day be used to reduce the tenure of judges by lowering the retirement age or otherwise limiting their period of office.
The Supreme Court rejected that comparison.
Drawing a clear constitutional distinction, the Court observed that the retirement ages of judges of the Supreme Court and Court of Appeal are themselves expressly provided for in the Constitution, unlike many other public offices.
It then made what may prove to be the most significant observation in the entire judgment.
The Court stated that any constitutional amendment affecting the retirement age or period of office of incumbent judges, whether directly or indirectly, would impinge upon the independence of the judiciary and violate Article 3 of the Constitution, thereby requiring approval by the People at a referendum.
That passage is now attracting renewed attention because it appears directly relevant to the Government’s current proposal to extend the retirement age of superior court judges.rather than weakens judicial independence by retaining experienced judges and promoting continuity within the courts. They also contend that extending tenure differs fundamentally from reducing it, since judges are not being deprived of office but permitted to serve for a longer period.
Supporters of the proposed amendment argue that increasing the retirement age strengthens rather than weakens judicial independence by retaining experienced judges and promoting continuity within the courts. They also contend that extending tenure differs fundamentally from reducing it, since judges are not being deprived of office but permitted to serve for a longer period.
Others, however, argue that the Supreme Court’s reasoning is not confined to reductions in tenure.
The judgment expressly refers to “any Constitutional amendment to the retirement age or the period of office impacting on incumbent judges, whether directly or indirectly.” That wording, they contend, encompasses both increases and decreases in retirement age where the amendment affects judges already holding office.
Whether that passage forms part of the binding ratio decidendi of the case or should instead be regarded as persuasive judicial observation is itself likely to become the subject of legal debate. Constitutional lawyers may differ on the weight that should properly be attached to those remarks, particularly as the principal issue before the Court concerned taxation rather than judicial tenure.
Nevertheless, the determination provides what is perhaps the clearest indication yet of how the Supreme Court views the constitutional relationship between judicial independence, security of tenure and the sovereignty of the People.
As Parliament prepares to debate the proposed amendment, the 2022 determination is therefore likely to feature prominently in the legal arguments that follow. Whether it ultimately proves decisive may depend on
whether the present proposal is viewed as materially different from the constitutional principle articulated by the Supreme Court- or as falling squarely within it.
