Making higher retirement ages prospective could remove much of the controversy – but it would also deny the Government the immediate benefit it says the reform is intended to achieve
COLOMBO, Sunday – Amid thousands of words of constitutional argument over the proposed extension of judicial retirement ages, one deceptively simple question keeps returning: if the Government believes Supreme Court judges should retire at 67 rather than 65, why not apply the new rule only to judges appointed in future?
It is an important question because prospective application could potentially remove, or at least substantially reduce, several of the objections now surrounding the proposed 22nd Amendment.
The Government’s underlying policy would remain intact. The retirement age of Supreme Court judges would become 67 and that of Court of Appeal judges 65. Sri Lanka would have made the policy decision that judges should serve longer, while nobody presently occupying those courts would receive additional tenure.
The distinction goes directly to the heart of the constitutional controversy. A judge appointed under existing constitutional arrangements knows the retirement age applicable to that office. Changing that age while the judge remains in office alters the period for which that individual can continue serving.
Opponents argue that it is precisely this feature – rather than the numbers 65 or 67 themselves – that engages the constitutional principle of judicial independence.
Prospective application produces a different situation. Parliament would still be changing the Constitution, but the new rule could be designed to govern appointments made after a specified date rather than extending the tenure of identifiable incumbents.
It would also substantially address the awkward question of judges potentially being called upon to determine the constitutionality of an amendment from which serving members of the Supreme Court might themselves benefit. If nobody presently serving receives additional tenure, that particular perception of personal benefit is considerably diminished.
It is nevertheless important not to leap from that proposition to the conclusion that prospective application is constitutionally required. That is precisely one of the matters which could arise if the proposed amendment is challenged before the Supreme Court.
The Government has a legitimate counterargument. Its proposal forms part of a wider attempt to strengthen judicial capacity now, rather than several years into the future. If experienced judges are required to deal with pressures confronting the courts, applying the higher retirement ages only to future appointments would postpone much of the intended immediate benefit.
There is nothing inherently extraordinary about a country reconsidering retirement ages. Governments routinely change retirement policies as life expectancy, professional working lives and institutional requirements evolve.
The difference is that judges are not ordinary public servants. Judicial tenure is constitutionally protected precisely because judges must remain independent of the political branches of government. Any alteration to the conditions governing how long serving judges remain in office consequently attracts a degree of constitutional scrutiny that would not ordinarily accompany a change in the retirement age of another profession.
There is another consequence which has received less attention. Keeping existing judges for an additional two years inevitably means that vacancies which would otherwise arise at particular dates arise later.
That can affect movement throughout the judicial hierarchy. A Court of Appeal judge who might otherwise become eligible for elevation to the Supreme Court could wait longer. A High Court judge awaiting possible elevation to the Court of Appeal could similarly find the timetable altered.
The Government’s proposed expansion in judicial numbers could counter some of those consequences, but retirement ages and judicial promotions cannot be viewed entirely separately.
This is why prospective application presents an attractive compromise to many critics. The Government obtains its long-term reform. Future judges serve longer. The retirement-age policy changes permanently. Yet the tenure of judges presently occupying office remains untouched.
But compromise remains a political choice unless the Constitution makes it a legal necessity.
If the Supreme Court determines that applying the extension to incumbent judges engages Article 3 and therefore requires approval at a referendum, the Government will face a very different calculation. Depending upon the precise reasoning of the Court, transitional or prospective arrangements could then assume considerable importance.
If, however, the Court determines that uniformly extending the retirement ages of incumbent judges does not infringe Article 3, the Government could proceed with the proposal subject to satisfying the constitutional requirement for a two-thirds parliamentary majority.
The question would then cease to be principally one of constitutional necessity and become one of political judgment.
That leaves perhaps the simplest question in this complicated controversy unanswered.
If prospective application can preserve the reform while removing much of the suspicion surrounding it, why not do it?
The Government’s answer is essentially that Sri Lanka needs to retain judicial experience now. Its opponents argue that judicial independence is too important to permit even the perception that the political branches are extending the tenure of judges presently occupying the Bench.
Somewhere between those positions may lie the least controversial route to reform.
Whether the Government is constitutionally obliged to take it is another matter altogether.
