Why Extending Judges’ Retirement Age Requires More Than Good Intentions
There is an important distinction between a pitfall and a pratfall.
A pitfall is a hidden danger waiting to trap the unwary. A pratfall is what happens after someone stumbles into it. One is the risk. The other is the embarrassment that follows.
Sri Lanka’s increasingly contentious debate over extending the retirement age of judges of the Supreme Court and Court of Appeal now threatens to contain both.
On its face, the proposal is neither extraordinary nor unprecedented. Around the world, governments have revisited judicial retirement ages as life expectancy has increased and experienced judges have remained capable of serving well beyond what previous generations regarded as retirement.
Courts benefit from wisdom, continuity and institutional memory. Few would dispute that a judge at the height of his or her intellectual powers still has much to contribute.
Nor is the Government without a legitimate objective. Sri Lanka’s courts continue to grapple with delays, mounting case backlogs and the practical difficulty of replacing senior judges whose experience has often taken decades to acquire.
Retaining experienced members of the Bench for a further period appears, at first glance, to be a sensible administrative response.
If that were the entire story, there would be very little to debate.
But constitutional democracies are rarely concerned only with outcomes. They are equally concerned with process, perception and public confidence.
That is where the pitfalls begin.
The first is not whether judges should retire at sixty-five, sixty-seven or even seventy. It is whether Parliament should alter the conditions of service of judges who are already occupying those offices. There is an important constitutional distinction between changing the rules for future appointments and changing the rules for those presently entrusted with exercising judicial power.
Many established democracies have chosen the former approach precisely because it avoids even the appearance that constitutional rules are being adjusted for identifiable individuals. Judicial independence is not protected merely by ensuring judges remain impartial.
It is protected by ensuring that no reasonable citizen has cause to wonder whether the Executive or Legislature possesses the ability to influence the tenure of serving judges.
Justice must not only be done. It must be seen to be done.
The second pitfall lies in assuming that retirement age is the principal cause of judicial delay. Anyone familiar with Sri Lanka’s legal system knows the challenges run much deeper. Vacancies remain unfilled for lengthy periods.
Courts are burdened with procedural inefficiencies. Modern digital case management remains incomplete. Court infrastructure in many parts of the country continues to require investment. Delays frequently arise not because judges retire too early, but because the system surrounding them struggles to function efficiently.
Changing one element of that system may assist, but it should not be mistaken for comprehensive reform.
The third pitfall is perhaps the most important of all. Public confidence in the judiciary is among the most valuable assets any democracy possesses. It takes generations to build and remarkably little to undermine. Even where legislation is constitutionally valid, if the public begins to suspect that judicial tenure is capable of being adjusted according to the convenience of the political branches, confidence inevitably suffers.
Pitfalls And Pratfalls….
That brings us to the pratfalls.
The Government appears to have underestimated the level of concern the proposal would generate within the legal profession.
Objections from senior lawyers, bar associations and constitutional commentators have transformed what may have begun as an administrative proposal into a national debate about judicial independence. That was entirely predictable and, perhaps, avoidable.
Communication has also left much to be desired. The public has heard various explanations: reducing backlogs, retaining experience, filling vacancies and now suggestions that the proposal may extend beyond the superior courts to encompass judges throughout the judiciary. Each explanation may possess merit, but together they risk creating the impression that the policy itself remains unsettled.
Good reform rarely succeeds through improvisation.
There is also an irony that cannot be ignored. Governments frequently argue that institutions should become younger, more innovative and more dynamic.
Across the public service there has often been emphasis on succession planning and leadership renewal. Yet when it comes to the judiciary, the argument suddenly becomes one of extending tenure. That inconsistency does not necessarily invalidate the proposal, but it does require a fuller explanation than has so far been provided.
None of this is to suggest that increasing the retirement age is inherently wrong.
It may well be the correct long-term policy.
If Parliament, after proper consultation, concludes that judges should serve longer, it possesses every democratic right to legislate accordingly. But there remains a compelling argument that any revised retirement age should apply prospectively to future appointments rather than immediately to those presently serving.
Such an approach would preserve the intended policy objective while avoiding unnecessary constitutional controversy.
The law is often judged not only by what it achieves but by how it chooses to achieve it.
History reminds us that confidence in courts can be weakened not only by corruption or incompetence but by perception. Once citizens begin questioning whether constitutional rules are being altered for those already holding judicial office, restoring that confidence becomes immeasurably more difficult.
That is why this debate deserves to rise above personalities, governments and individual judges.
It is ultimately about protecting an institution that belongs not to those who sit upon the Bench, nor to those who occupy the Treasury benches in Parliament, but to every citizen who may one day seek justice before it.
Be that as it may, every reform carries its pitfalls. The wisest governments recognise them before legislation is introduced.
The best governments avoid the pratfalls that follow when legitimate reform is pursued without first securing the confidence of those whose trust matters most. On matters touching the independence of the judiciary, public confidence is not simply desirable. It is indispensable.
