The issue is not whether judges can competently serve for another two years. It is whether a sitting Government should extend the tenure of judges who must continue to determine the legality of that Government’s actions.
By M. U. M. Ali Sabry, PC
“There is no liberty if the judicial power be not separated from the legislative and executive.”
— Montesquieu, The Spirit of the LawsThe controversy surrounding the proposed Twenty Second Amendment should not be reduced to a debate about whether judges are intellectually or physically capable of serving for another two years. Many judges undoubtedly remain at the height of their ability and experience well beyond the present retirement age.
Nor should this debate be personalised around any particular judge or officeholder.
The fundamental constitutional issue is whether the retirement age of judges already holding office should be extended by the sitting Government and its parliamentary majority, when those same judges must continue to determine the legality of the actions of that Government. That question goes to the heart of the separation of powers, the independence of the Judiciary and public confidence in the administration of justice.
There is also a further matter that cannot reasonably be ignored: the apparent haste and priority accorded to this amendment, although it was not part of the Government’s electoral mandate, while several major constitutional and legal reforms expressly promised to the People remain unfulfilled.
Judicial independence belongs to the citizen
The independence of the Judiciary is not a privilege created for the benefit of judges. It is a constitutional protection belonging to every citizen. Articles 3 and 4 of the Constitution declare that sovereignty belongs to the People and distribute its exercise among the Legislature, the Executive and the Judiciary. The Executive governs. Parliament legislates and exercises oversight. The Judiciary interprets and applies the law, protects fundamental rights and determines whether governmental power has been exercised within constitutional limits.
These institutions are co-equal in constitutional dignity, although their functions are different. None is intended to become an extension of another. This separation assumes particular importance in Sri Lanka because the Executive will ordinarily command the support of the parliamentary majority. The Executive and Legislature may consequently operate with considerable political alignment. The Judiciary remains the independent constitutional counterweight entrusted with reviewing the legality of governmental action and protecting the citizen against the misuse of public power.
When the contest is between citizen and citizen, the judge must be impartial. When the contest is between the citizen and the State, the judge must be demonstrably independent of the state without fear or favour.
The judicial oath captures the essential character of judicial office. A judge must discharge the duties of office honestly and faithfully, without fear or favour, affection or ill will.
A judge must not fear punishment from the Executive for an unfavourable decision. Equally, judicial independence must be protected from the possibility, or even the reasonable appearance, of favour or reward being conferred by the political branches. The Constitution presently fixes the retirement age of Supreme Court judges at 65 and Court of Appeal judges at 63. Every judge accepting office does so knowing the date upon which the constitutional tenure will end. The Executive, Parliament, the legal profession and the public know that date as well.
That certainty is itself an important safeguard. It ensures that the duration of judicial office does not depend upon the subsequent goodwill, preference or intervention of those exercising political power. The proposed amendment would increase the retirement age of Supreme Court judges to 67 and Court of Appeal judges to 65. If that change applied only to judges appointed in the future, it would establish a new and generally applicable constitutional policy.
But when applied to sitting judges, it has an immediate and identifiable consequence. Judges whose tenure was due to end on a constitutionally predetermined date would receive an additional two years in office through an amendment initiated by the Executive and enacted by the Government’s parliamentary majority.
Whatever the Government’s stated intention, additional tenure may reasonably be perceived as a benefit or reward conferred upon sitting judges. That creates the central constitutional difficulty.
Justice must be seen to be done
Lord Hewart’s enduring statement in R v Sussex Justices, ex parte McCarthy remains directly relevant: ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done.’
The principle does not depend upon proof that a decision-maker acted dishonestly. It is concerned with the appearance of impartiality and the confidence of the public in the administration of justice.
It is not sufficient to say that our judges are persons of integrity and will not be influenced by an extension of tenure. That may be entirely true. But constitutional safeguards are not built solely upon an assumption that everyone concerned will always act honourably. They are designed to remove circumstances capable of creating influence, obligation or a reasonable perception of partiality. No allegation of actual bias needs to be made against any sitting judge. Indeed, it would be wrong to question the integrity of judges merely because Parliament alters the Constitution. The concern is institutional rather than personal.
Consider the citizen who comes before court challenging a decision of the Government. The citizen may be seeking protection against unlawful arrest, arbitrary administrative action, the violation of a fundamental right, the loss of property or an abuse of executive power. That citizen is entitled to appear before judges whose independence from the Government is beyond reasonable question.
If the judges determining the case have just received two additional years in office through an amendment introduced by that Government, the unsuccessful citizen may ask whether the court was entirely free from a sense of gratitude, accommodation or institutional obligation.
The judge may, in fact, have acted with complete independence. But the question will remain in the public mind. That doubt itself damages the administration of justice. Courts derive their authority substantially from public confidence. Their judgments are accepted because the People believe that justice is administered independently, impartially and according to law. Once that confidence is weakened, every important judgment involving the Government becomes vulnerable to suspicion. Justice may have been done, but the public may no longer be certain that it was seen to be done.
The question of motive, haste and priority
The Government’s motive has become a legitimate part of the constitutional debate, not because improper motive has been proved, but because the timing, urgency and selective priority accorded to this amendment inevitably invite scrutiny. The Government sought and obtained the confidence of the People on an extensive programme of constitutional and legal reform. Its manifesto promised a new Constitution, the abolition of the Executive Presidency, and the repeal or fundamental reform of the Prevention of Terrorism Act and the Online Safety Act. These were not peripheral promises. They were presented as central elements of democratic renewal and a transformation of the relationship between the citizen and the State.
Yet no new Constitution has been presented. No transparent constitutional process, accompanied by a clear timetable and meaningful public consultation, has yet been placed before the country. The Executive Presidency remains. The Prevention of Terrorism Act and the Online Safety Act also remain part of the law, notwithstanding repeated assurances concerning reform, repeal or replacement.
These reforms are undoubtedly complex. They require consultation, careful drafting and, in some instances, approval by the People at a referendum. It is fair to acknowledge that they cannot all be completed overnight. But that explanation makes the unusual speed of the Twenty Second Amendment even more striking. The extension of the tenure of sitting judges was not a policy placed before the electorate. It was not identified as an urgent national priority in the Government’s manifesto. It does not address an immediate constitutional crisis. Nevertheless, it has moved forward with considerably greater urgency than the major reforms upon which the Government expressly sought a popular mandate.
The People are therefore entitled to ask: Why has this unpromised constitutional amendment moved ahead of the promised new Constitution? Why has an amendment affecting the tenure of serving judges been treated with greater urgency than the promised abolition of the Executive Presidency? Why has the same urgency not been demonstrated in repealing or reforming laws which the Government itself characterised as oppressive or inconsistent with democratic freedoms? Why must the retirement age be changed immediately for judges already in office, rather than prospectively for future appointees?
These are not partisan questions. They arise naturally from the Government’s own choices and priorities.
A reasonable apprehension about intention
The Government has stated that the amendment is not intended to benefit any particular person and that its purpose is to retain judicial experience, reduce delays and improve the administration of justice. That explanation must be considered fairly. Sri Lanka undoubtedly requires urgent and comprehensive justice-sector reform. But assurances of good intention cannot, by themselves, resolve the constitutional concern. The practical beneficiaries of the amendment are known. The Government knows which sitting judges will remain in office, which expected vacancies will be postponed and how the composition of the superior courts will be affected during the additional period.
In those circumstances, the unexplained urgency inevitably creates a reasonable apprehension that the Government may wish to retain certain judges whom it considers favourable, acceptable or less likely to obstruct its programme. That is not an accusation that such an intention has been established. It is an objective concern arising from the design, timing and immediate effect of the proposal.
Statesmanlike constitutional criticism must distinguish between alleging misconduct and identifying circumstances that give rise to reasonable doubt. The former requires proof. The latter requires the Government to provide a persuasive explanation and adequate safeguards. When constitutional tenure is being altered, the burden cannot be placed upon the citizen to prove a private arrangement between the political branches and the Judiciary. The constitutional process itself must be sufficiently transparent, principled and prospective to exclude any reasonable suspicion of such an arrangement.
If a measure is capable of creating the perception that the Government is preserving a judicial composition it regards as favourable, future judgments in politically significant cases may be judged not only by their legal reasoning but through the lens of the tenure extension. That would be deeply unfair to the judges themselves and destructive of public confidence.
Separation of powers protects against punishment and favour
Separation of powers is sometimes understood too narrowly as preventing direct instructions from the Executive to the Judiciary. Political interference need not always take the form of threats, removal or express commands. Influence can also arise through benefits, expectations and altered conditions of tenure.
The Judiciary must therefore be protected against both the displeasure and the favour of the political branches. A judge should neither fear the loss of office nor appear indebted for continued office.
The amendment does not formally permit the Government to select which judges will receive an extension. It establishes a general increase in retirement age. That distinction must be acknowledged. Nevertheless, because it applies to those presently holding office, its immediate beneficiaries are ascertainable. It changes the anticipated composition of the superior courts, delays expected vacancies and affects the continuity of the judges who will continue to decide cases involving the Government.
The Executive and Legislature are thereby altering the tenure of members of the very branch constitutionally empowered to review and restrain them. Constitutional scrutiny must look beyond general language and examine practical effect.
Objections from many quarters Serious concerns have been expressed by the Bar Association of Sri Lanka, organisations representing the legal profession and judges, the Commonwealth Lawyers Association, the International Association of Judges, the United Nations Special Rapporteur on the independence of judges and lawyers, civil society organisations, political parties and the Mahanayake Theros.
These statements differ in language and emphasis, but converge upon common concerns: the danger of altering the tenure of sitting judges; the appearance of Executive and legislative influence over the Judiciary; the absence of adequate consultation and transitional safeguards; the introduction of a significant constitutional change in a piecemeal manner; the questionable priority and urgency accorded to the proposal; and the possible erosion of public confidence in judicial independence. These objections cannot reasonably be dismissed as resistance to reform. When concerns of this gravity arise independently from so many quarters, a responsible Government should pause, consult and reconsider. A Government does not weaken itself by listening to principled criticism. It strengthens the legitimacy of its decisions.
The principled solution
There may be a legitimate case for increasing the retirement age of judges. Longer life expectancy and the value of accumulated judicial experience justify a serious national discussion. But if the proposal is genuinely intended as a permanent institutional reform, there is no compelling reason for it to alter the retirement dates of judges already holding office.
The constitutional difficulty can be substantially removed through one simple safeguard: any increase in the judicial retirement age should operate prospectively and should not extend the tenure of sitting judges.
This would allow Parliament to establish a new constitutional policy for the future without creating the perception that additional tenure has been conferred upon identifiable judges. It would protect the Executive from allegations that it is seeking to retain a judicial composition it considers favourable. It would protect Parliament from the perception that its majority is being used to affect the present composition of the courts.
Most importantly, it would protect sitting judges from the unfair and uncomfortable position of having their future judgments questioned because their tenure was extended by the Government during their period of office. No judge should be compelled to carry the burden of public suspicion created by a constitutional amendment over which the judge had no control.
Conclusion
This debate is not about whether particular judges are honourable or whether an improper governmental motive has been proved. Constitutional principles must be applied independently of personalities.
The question is not whether judges are capable of serving for two more years. It is whether the political branches should confer those additional years upon judges presently exercising judicial power over them. The unexplained haste with which this unpromised amendment has been pursued, while major constitutional and democratic reforms expressly promised to the electorate remain unfulfilled, naturally raises questions about priority and motive.
The Government owes the country more than an assurance that its intentions are honourable. It must explain why this amendment is urgent, why it must apply to serving judges, why prospective implementation is inadequate and what safeguards will prevent actual or perceived political influence over the composition of the Judiciary.
Judges must continue to decide every case without fear or favour, affection or ill will. The citizen who comes before court against the State must have complete confidence that the judge owes nothing to the Government, fears nothing from the Government and expects nothing from the Government.
An extension of tenure granted by the sitting Executive and its parliamentary majority risks disturbing that confidence. It creates the appearance of a benefit where constitutional distance is required, a possible sense of obligation where complete independence must prevail, and doubt where there should be none.
The Judiciary need not always be popular. Courts will frequently be required to make decisions that are unpopular with governments, parliamentary majorities and sections of the public. But the Judiciary must always remain independent, impartial, unafraid and unwavering.
The independence of the Judiciary is the citizen’s last line of defence against the unlawful exercise of power. It must therefore be protected not only from punishment and pressure, but also from favour and reward.
Justice must not only be done. It must manifestly and undoubtedly be seen to be done.