Why Accountability Must Never Overtake the Rule of Law
Governments are often elected to fix what previous governments failed to fix. That is, after all, the essence of democracy. Voters become dissatisfied, they seek change and they entrust a new administration with the responsibility of doing things differently.
Sri Lanka’s present Government was no exception. It campaigned vigorously on restoring integrity, strengthening institutions and holding those who had abused public office to account. Few would dispute that those are entirely legitimate aspirations.
Yet even the noblest ambitions carry a quiet danger.
They can sometimes persuade governments that because the objective is unquestionably good, the route taken to reach it matters a little less.
Constitutional democracies have always resisted that temptation. They insist that process matters just as much as purpose. Indeed, history is full of examples where laws introduced with admirable intentions later became tools that less admirable governments found remarkably convenient. It is one reason constitutions are deliberately cautious. They are designed not merely for today’s leaders but for those who will occupy office decades from now.
That is why the current debate surrounding proposals to increase the retirement age of judges in Sri Lanka’s superior courts deserves rather more thoughtful discussion than it has thus far received.
Let us begin by acknowledging what should be obvious. There is absolutely nothing inherently wrong with retaining experienced judges for longer.
Around the world, several mature democracies have revised judicial retirement ages to reflect longer life expectancy, increasing legal complexity and the immense value of accumulated judicial wisdom.
Few litigants would object to their case being heard by a judge whose decades on the Bench have sharpened both judgment and restraint.
GOOD INTENTIONS CAST…
If that is the principle, it is a perfectly respectable one. The difficulty begins when principles appear to become selective.
If experience is so valuable that judges should remain in office beyond the existing retirement age, should that reasoning apply only to judges? What of consultant surgeons performing delicate procedures that few others possess the expertise to undertake?
What of specialist engineers responsible for critical infrastructure? University professors supervising doctoral research? Scientists, economists, diplomats or senior public administrators whose knowledge has been built over forty years of public service?
Experience does not suddenly acquire value only upon entering a courtroom.
Nor does the discussion end there.
An equally important question concerns timing.
Should reforms of this nature apply prospectively, benefiting those appointed in future? Or should Parliament alter the terms governing those already serving? Lawyers and constitutional scholars may hold differing opinions, and reasonable arguments exist on both sides. Yet one principle has generally served democracies rather well. Whenever legislation directly affects holders of high constitutional office, governments should strive to avoid even the appearance that rules are being adjusted with identifiable individuals already in mind.
Appearances matter because public confidence depends upon them.
Justice, we are frequently reminded, must not only be done but must also be seen to be done. The same could be said of legislation. Laws may be perfectly lawful and yet still leave citizens wondering why one institution has been singled out while others remain untouched. That uncertainty is rarely healthy for public confidence, however honourable the Government’s intentions may be.
There is a broader lesson here.
Governments committed to accountability are often judged by a higher standard than those that made no such promise. That is not unfair. It is the inevitable consequence of asking the electorate to trust you with reform. Citizens are entitled to expect that institutional changes will be guided by objective principles capable of consistent application rather than by circumstances unique to a particular moment.
This is not an argument against reform. Quite the opposite. Sri Lanka should never become afraid to modernise its institutions. Retirement ages, judicial appointments, constitutional procedures and the structure of the public service should all be open to careful review as society evolves.
But reform commands the greatest respect when it is rooted in principles that would remain equally persuasive regardless of who occupies office today, tomorrow or twenty years from now.
Perhaps that is the real constitutional test.
Would we still support exactly the same proposal if an entirely different government introduced it? If the answer is yes, then the reform probably rests upon sound principle. If the answer depends upon who currently occupies office, then perhaps more reflection is required before Parliament proceeds.
Democracies are rarely weakened by too much accountability.
They are weakened when accountability itself begins to appear selective.
Be that as it may, the true measure of constitutional reform is not whether it benefits today’s Government or today’s judges. It is whether future generations will regard it as legislation framed for the nation rather than for the moment.
