The Real Threat to Judicial Independence

Despite false campaigns carried out by certain groups opposing the government’s judicial system reforms aimed at expediting the delivery of justice to the public, Sri Lankan lawyers residing abroad are currently expressing support for these amendments.

Meanwhile, a number of local legal experts have also directly voiced their endorsement of the proposed judicial reforms. Below is the full text based on insights shared by Professor, Attorney-at-Law Pratibha Mahanamahewa:

In today’s democratic society, a widespread public discourse has emerged regarding judicial independence and constitutional amendments. Opinions are especially divided over the relationship between extending the retirement age of judges and safeguarding the independence of the judiciary. This legal and scientific analysis examines international trends, constitutional frameworks, and the true meaning of judicial independence.

Judicial independence remains a fundamental priority frequently highlighted by international organizations, including the United Nations Human Rights Council. In most democratic nations, provisions safeguarding the powers and autonomy of the judiciary are embedded directly within the constitution.

However, a constitution is not a rigid, unalterable document frozen in time. Constitutional frameworks originating in the 1950s have been progressively amended by nations across the globe to align with modern societal needs. Believing that judicial independence requires keeping constitutional provisions entirely unchanged contradicts globally recognized legal traditions.

Raising the retirement age of judges is neither a novel experiment nor an untested phenomenon. It is a policy decision extensively debated at international conventions and adopted by numerous democratic states.

Increased Life Expectancy: Advances in modern medicine have significantly improved overall health and extended life expectancy.

Growing Case Complexity: As legal proceedings grow increasingly complex, retaining senior and experienced judges within the system becomes essential.

Institutional Stability: Preserving the continuity and institutional memory of the judiciary.

Leveraging Experience: Capitalizing on the knowledge, wisdom, and maturity of seasoned judges.

Democratic nations, including India, Bangladesh, and several Caribbean states, have successfully implemented similar amendments. This concept is not new to Sri Lanka either, having been addressed during the 2020 constitutional amendment that expanded the number of judges, as well as in prior policy discussions.

Judicial independence is an integral component of popular sovereignty. Sri Lanka’s 1978 Constitution explicitly provides a clear legal framework and methodology for constitutional amendments through democratic procedures.

Therefore, an amendment introduced in accordance with constitutional and legal procedures cannot be labeled “unconstitutional.” Democracies worldwide view such amendments as standard, legitimate practices.

While public consultations and discussions are commendable practices aligned with good governance principles, the Constitution does not mandate a specific timeframe (e.g., 1, 2, or 3 years) for deliberations. The duration depends on the urgency of societal needs. Furthermore, public consultations are not strictly mandatory for every constitutional amendment under every legal framework.

Claiming that extending the retirement age of judges undermines judicial independence is unjustified. Genuine threats to judicial independence arise only in scenarios such as:

Deliberately curtailing existing judicial powers.

Political or external interference in the independent decision-making process of courts.

Arbitrary alterations to the legal procedures governing the appointment and removal of judges.

Reducing judicial protections, immunities, and privileges.

For this age extension policy to succeed, it must be applied fairly across the entire judicial system rather than selectively to specific individuals. This policy should encompass not only the Supreme Court and Court of Appeal, but also High Courts and lower courts across the judiciary.

Just as the service period of medical specialists and other public sector professionals is extended based on public necessity, the same principle applies to the judiciary. Extending the retirement age of judges in compliance with the Constitution and statutory procedures does not constitute an attack on judicial independence. It is a lawful, reasonable, and necessary adjustment within a functioning democratic framework.

• Prof. Pratibha Mahanamahewa, Attorney-at-Law

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