Saturday Aug 01, 2026
Saturday Aug 01, 2026
Friday, 31 July 2026 00:25 - - {{hitsCtrl.values.hits}}
Justice Minister Harshana Nanayakkara
BASL President Rajeev T. Amarasuriya
The Sri Lankan legal community is presently engaged in what is arguably its most consequential constitutional debate since the adoption of the Twenty-First Amendment (21A).
The immediate trigger is the Government’s proposal to amend the Constitution to increase the retirement age of judges of the Supreme Court and Court of Appeal.
However, beneath that specific issue lies a much broader discussion about judicial independence, institutional efficiency, court administration, and the constitutional balance between the Executive and the Judiciary.
The dominant impression from the past two months is not one of outright confrontation between Government and the legal profession, but of deep institutional caution.
Reform agenda
The Justice Ministry has indicated that it is examining reforms intended to improve the administration of justice. Public discussion has centred on increasing the retirement age of judges of the superior courts; reducing delays and the mounting backlog of litigation; improving judicial administration; modernising court processes through digitalisation; and broader structural reforms intended to make justice more efficient.
Government supporters have argued that experienced judges should be retained longer in order to preserve institutional memory and reduce disruption while reforms are underway. The proposal has been presented as one component of a wider program to streamline the justice system rather than as an isolated constitutional amendment, according to media reportage.
Bar objections
The Bar Association of Sri Lanka (BASL) has adopted a carefully reasoned rather than overtly political position.
Its principal arguments are that: no convincing evidence has been produced showing that increasing judicial retirement ages will solve case delays; constitutional changes affecting judicial independence require broad consultation; existing vacancies should first be filled; and reforms should address institutional weaknesses before altering constitutional safeguards.
In two formal communications – first to President Anura Kumara Dissanayake; and later, to the Justice Minister– the BASL requested that the proposal be suspended until a consultative process involving judges, lawyers, academics and other stakeholders is established, as reported in the media.
One important point repeatedly made by the BASL is that the number of Supreme Court and Court of Appeal judges had already been expanded under the Twentieth Amendment (20A). Their argument is that if the enlarged judicial complement has not eliminated delays, extending judicial tenure alone cannot reasonably be expected to do so, as also reported.
Immediate concerns
Interestingly, the BASL has simultaneously criticised Government for almost the opposite problem.
Earlier this month, it urged the President to fill four vacancies in the Supreme Court and a similar number of vacancies in the Court of Appeal.
According to the Bar Association, these vacancies themselves are significantly contributing to delays and undermining confidence in the administration of justice.
This has become one of the strongest practical arguments advanced by the legal profession: before changing retirement ages, appoint judges to posts that already exist.
Wider support
The BASL has not been isolated. The Commonwealth Lawyers’ Association publicly supported the BASL’s position, urging Sri Lanka not to proceed without broad consultation and warning that constitutional amendments affecting judicial tenure should be approached with exceptional caution because they bear directly upon judicial independence, per some sections of the press.
Legal commentators writing in the same national press outlets have similarly observed that judicial tenure is never merely an administrative question. It also affects public confidence; separation of powers; judicial independence; and constitutional legitimacy.
Consequently, even lawyers who favour wider justice sector reform have generally argued that any amendment must be transparently justified rather than introduced as an expedient administrative measure.
The real issue
Across editorials, legal commentary and BASL statements, there is broad agreement on what the justice system’s actual problems are.
These include chronic delays in civil litigation; criminal trials that take many years; insufficient judicial manpower in lower courts; administrative inefficiency; inadequate digital infrastructure; procedural complexity; shortages of court staff; and inconsistent case management.
Most commentators argue that these issues (not the retirement age of apex judges) are the principal causes of delay.
Constitutional vs. administrative
The debate has acquired constitutional significance because judicial tenure is widely regarded as one of the safeguards of judicial independence.
Legal scholars have noted that changing retirement ages while particular judges are approaching retirement inevitably raises questions: whether these are justified or not; about who benefits; future appointments; executive influence; and judicial autonomy.
This, perhaps, explains why even lawyers who are not opposed in principle to longer judicial service have insisted upon transparent consultation and clear empirical justification.
Mood in the field
At present, the legal community appears to be characterised less by ideological division than professional consensus on process.
Broadly speaking, there is considerable support for digitalising the courts system; reducing case backlogs; procedural reform; modern case-management systems; filling judicial vacancies; and improving access to justice.
There is much less support for constitutional amendments affecting superior court judges unless these are preceded by extensive consultation and supported by evidence demonstrating necessity, in the opinion of some commentators.
Outlook
The Government now faces a delicate balancing exercise. On the one hand, there is widespread public demand for a faster, more efficient justice system. On the other, Sri Lanka’s legal profession has made it clear that efficiency cannot come at the perceived expense of judicial independence.
The likely path to consensus would be a sequenced reform program. First, fill the existing vacancies, invest in digital and procedural modernisation, and strengthen court administration. And only then consider constitutional changes, if evidence shows they are needed.
Whether the Government adopts that sequence will determine whether this episode becomes a collaborative judicial reform process or a more contentious constitutional confrontation…
Civil society lens
Meanwhile there is the perspective of society at large to be considered. Since State moves as much as Bar pushback doesn’t occur in a vacuum, it behoves us to ask what the bigger picture may be. Consider it – for the purposes of this piece, at least – from the point of view of a disinterested observer to recent judicio-legal goings-on, as well as speculation on governmental motives.
Viewed through a constitutional rather than partisan lens, there are at least three plausible ways of interpreting the Government’s proposals to reform the judicial system that prevails at present.
And any disinterested observer should resist assuming either benevolent reformism or hidden political intent without evidence.
The significance lies less in what the Government says its objectives are than in whether the proposed measures demonstrably advance those objectives while preserving judicial independence.
We first essay a SWOT analysis of the Government’s position:
Strengths
Weaknesses
Opportunities
Threats
It is not impertinent to also examine possible governmental motives. Several motives are consistent with the available evidence. They are not mutually exclusive. Nor should they irritate the more defensive elements in NPP ranks.
Administrative vs. institutional
The first set of these redounds to what we may call ‘administrative pragmatism’.
This is the Government’s stated rationale in this regard: Experienced appellate judges require many years to develop constitutional expertise. Extending their tenure could avoid repeated vacancies while the justice system is being modernised.
This is a perfectly legitimate policy objective if it is supported by evidence. Its weakness is empirical. Most delays occur in the District Courts and the High Courts rather than in the Supreme Court. Consequently, critics ask whether extending the tenure of a relatively small number of senior judges would materially affect overall judicial efficiency.
The second set of these speaks to what is considered ‘institutional continuity’.
Governments often prefer continuity during periods of constitutional and economic transition.
Sri Lanka is simultaneously pursuing economic recovery, governance reform, anti-corruption initiatives and constitutional questions. An experienced appellate bench arguably provides stability while these matters are litigated. This motive is neither unusual nor necessarily improper.
Third aspect
There is also the ever-present dimension of political risk management. A more skeptical interpretation is that governments naturally prefer greater predictability in institutions exercising judicial review. Importantly, there is presently no public evidence that the Government is seeking to ‘capture’ the Judiciary.
However, constitutional scholars often observe that changing judicial tenure inevitably affects future appointments, succession planning and the ideological composition of apex courts. Even if entirely benign, governments must expect such questions. And regimes that grow irritable at being questioned would do well to bridle their impatience with an electorate equally intolerant of presumption on the part of the powers that be.
There is also a communications dimension. Justice reform is politically attractive. Announcing constitutional reforms may project decisiveness even if those reforms produce relatively modest operational improvements.
Bar of balance
In terms of evaluating the BASL’s criticism, the Bar Association’s arguments deserve to be separated into procedural and substantive objections.
Procedural criticism: Here the BASL’s case is particularly strong. Constitutional conventions across many democracies favour extensive consultation before altering judicial tenure. This is less because consultation guarantees better outcomes than because it reinforces legitimacy. A constitutional amendment affecting judges should not appear to emerge solely from executive initiative.
Substantive criticism: Here the picture is more mixed. The BASL argues that existing judicial vacancies should first be filled; technology should be modernised; lower courts require greater resources; and case management requires reform.
These arguments are persuasive because they address the system’s principal bottlenecks. However, they do not necessarily prove that extending retirement ages would be harmful. Rather, they suggest that it is unlikely to be sufficient.
There is also the test of neutrality. Disinterested observers should also recognise that bar associations naturally possess institutional incentives. Their constitutional role includes defending judicial independence. Consequently, they tend to scrutinise executive proposals affecting judges more rigorously than reforms affecting other branches. That does not invalidate their arguments. But it does explain why they emphasise constitutional safeguards over administrative efficiency.
Changed constitutional landscape
One important contextual difference distinguishes 2026 from many earlier periods. Sri Lanka’s institutions presently enjoy a healthier equilibrium than during several previous decades.
Compared with periods dominated by an expansive executive presidency, today’s environment features a more assertive Parliament; greater public scrutiny; stronger civil society; an increasingly independent Election Commission and other oversight bodies; a Supreme Court that demonstrates willingness to review executive action; and a legal profession that speaks publicly and promptly.
This altered institutional ecology changes how observers should interpret current events. A proposal affecting judicial tenure is no longer occurring within a political vacuum. It is being debated openly among competing institutions. That is itself evidence of constitutional health.
Disinterested conclusions
An observer without partisan commitments might reach several conclusions:
First, there is little evidence at present of an imminent constitutional crisis. The disagreement is occurring through institutional channels rather than through attempts to bypass them.
Second, both sides appear to be pursuing legitimate constitutional values. Government emphasises efficiency. The legal profession emphasises independence. These objectives are not inherently incompatible.
Third, the controversy may actually illustrate a maturing constitutional order. Healthy constitutional democracies are characterised not by the absence of institutional disagreement but by disagreement conducted through lawful processes.
Finally, the Government bears the heavier burden of persuasion. Because judicial independence is a constitutional safeguard rather than merely an administrative arrangement, reforms affecting it should satisfy a higher standard of justification than ordinary legislation.
It is therefore reasonable for the legal community to ask for evidence that the proposed changes are necessary, proportionate, and designed for the long-term public interest rather than short-term administrative convenience.
Broader observation
Perhaps the most interesting feature of this episode is that it reflects a shift in Sri Lanka’s constitutional culture. In earlier decades, debates about judicial reform were often framed as contests between the Executive and the Judiciary.
Today, the conversation increasingly includes Parliament, the Bar, civil society, academics, and the media. That diffusion of constitutional discourse is itself a sign of a more pluralistic balance of power.
The ultimate test of the Government’s proposals will therefore not be whether they are enacted, but how they are enacted.
If reforms emerge from transparent consultation, are supported by empirical evidence, and also preserve both the reality and appearance of judicial independence, they are likely to strengthen the rule of law.
If they are perceived as unnecessary or insufficiently justified, even well-intentioned reforms risk eroding public confidence in the very institutions they seek to improve.
Only time will tell.
(The writer is the Editor-at-large of LMD and is a senior journalist with a Post-graduate Diploma in Politics and Governance)
