Defending the Judiciary: Why Timing and Process Matter in Constitutional Reform

By Adolf

Introduction 

Living in a European democracy where constitutional norms and institutional independence are deeply respected, the current debate in Sri Lanka over extending the retirement age of superior court judges is deeply troubling. Equally concerning is the recent imposition of the death penalty on senior public officials for negligence, and the increasingly public role of Cardinal Ranjith in influencing matters before the courts. Together, these developments raise uncomfortable questions about the health of Sri Lanka’s democratic institutions.

There is a growing attempt to dismiss opposition to the proposed extension of judges’ retirement ages as nothing more than an Opposition campaign. That is both convenient and dangerous. The recent attack by an NPP Parliamentarian on the President of the Bar Association of Sri Lanka (BASL) reflects this tendency to equate constitutional criticism with political disloyalty. Yet defending judicial independence is not a partisan act; it is a constitutional duty.

Credit to BASL 

The BASL Chairman has not objected to changing the retirement age in principle. Its concern is the timing, the process and the immediate beneficiaries. That distinction is crucial. If judicial reform is genuinely required, why the haste? Why alter the rules just as identifiable judges approach retirement? Sri Lanka has a deep pool of experienced and capable judges ready to assume higher office through the normal constitutional process. Judicial succession is not a crisis. It is an established feature of every independent judiciary. Unless there are exceptional circumstances, the Government has not explained why existing retirement rules must be changed now rather than through a prospective reform applying only to future appointments.

This unanswered question inevitably creates suspicion. Constitutional rules should never be amended simply because particular office holders are nearing retirement. Doing so risks creating the perception that the law is being tailored to individuals rather than applied impartially.

The Government argues that the judiciary faces delays and a shortage of judges. Those are genuine concerns. But extending the tenure of sitting judges is not the only, or necessarily the best, solution. More judges can be appointed. Court administration can be modernised. Case management can be improved and longstanding procedural bottlenecks removed. Administrative problems should not become reasons to weaken constitutional safeguards.

The real danger is not necessarily the intention of the present Government but the precedent it creates. If one government can extend the tenure of sitting judges, another can shorten it or extend it again to suit its own preferences. Judicial tenure then becomes a political instrument rather than a constitutional guarantee.

This debate is therefore not about whether judges should retire at 63, 65 or 67. It is about whether governments should be able to change the rules for judges already serving. Once that principle is compromised, every future government inherits the same power.

The BASL and the Judicial Service Association have both expressed serious concerns. These are not political organisations. They are institutions dedicated to preserving the independence and integrity of the judiciary. Their arguments deserve careful consideration, not political abuse.

The recent Easter Sunday judgment has added another dimension to this debate. While the courts must determine criminal liability according to the law, many citizens continue to ask whether accountability has been applied consistently across the entire chain of responsibility. Public confidence in justice depends not only on the correctness of judgments but also on the belief that the law applies equally to everyone.

Conclusion 

Governments come and go, but constitutional institutions must endure. The true test of a government is not how it treats institutions that support it, but how it protects those that may one day restrain it. The safest constitutional principle is also the simplest: never change the rules governing sitting judges in a way that directly benefits or disadvantages them. Reform should always be prospective, transparent and based on institutional need—not individual circumstance. That is how public confidence is preserved, judicial independence is protected, and democracy itself is strengthened. Finally the central question: “If there are competent successors available, what is the compelling constitutional urgency to change the rules today?” It challenges the Government to justify the timing without asserting motives that cannot be proved. Also the other question is will the opposition respond constructively before the streets take over?

The post Defending the Judiciary: Why Timing and Process Matter in Constitutional Reform appeared first on LNW Lanka News Web.