Judicial independence is not about judges—it is about every citizen

Supreme Court of Sri Lanka

Few constitutional debates appear as technical as the retirement age of judges. Yet behind what may seem to be a routine administrative change lies a question that concerns every citizen: who safeguards the independence of the courts when constitutional rules affecting judges themselves are changed?

Sri Lanka is once again confronted with this question through the Government’s proposal to amend the Constitution to increase the retirement age of judges of the Supreme Court and the Court of Appeal. The Government has explained that the proposal forms part of a broader effort to reduce delays in the administration of justice and ensure greater continuity in the higher judiciary. These are legitimate public objectives. Few would dispute that justice delayed is justice denied.

However, the proposal has generated unusually broad concern among the legal profession. The Bar Association of Sri Lanka (BASL), the Judicial Service Association (JSA), senior lawyers and constitutional commentators have expressed reservations—not because extending judicial service is inherently objectionable, but because of when, how and to whom such a constitutional amendment would apply.

Beyond partisan politics

The issue therefore deserves to be examined beyond partisan politics. It is fundamentally about constitutional governance, democratic legitimacy and public confidence in the administration of justice. Perhaps the most useful starting point comes not from domestic political debate but from internationally accepted principles.

In November 2024, the European Law Institute adopted the ELI-Mount Scopus European Standards of Judicial Independence, developed by internationally respected scholars including Professors Shimon Shetreet, Sophie Turenne, Leah Wortham and Fryderyk Zoll after extensive consultation with judges, lawyers, academics and international organisations.

Although these standards were drafted primarily for Europe, the principles they articulate reflect long-established international norms shared across democratic jurisdictions.

Their central message is simple: judicial independence exists not for the benefit of judges but for the protection of ordinary citizens.

The Standards recognise that courts must remain free from both actual political interference and the appearance of political influence. They also emphasise that reforms affecting the judiciary should strengthen institutional independence rather than create uncertainty about it. This distinction is important.

In constitutional democracies, public confidence depends not merely on whether judges are in fact independent, but whether reasonable citizens believe they are independent.

Public confidence in the judiciary

The BASL has expressed precisely this concern. Its public position is not that increasing retirement ages is always unconstitutional or inherently improper. Rather, it argues that extending the tenure of serving judges through a constitutional amendment at the present time may reasonably be perceived as Governmental interference with judicial independence.

That concern deserves careful consideration.

Public confidence in the judiciary is exceptionally fragile. Once doubts emerge regarding judicial impartiality, rebuilding institutional trust becomes far more difficult than preserving it in the first place. International experience consistently demonstrates this point.

Across Commonwealth democracies and jurisdictions governed by the rule of law, changes affecting judicial tenure are generally approached with considerable caution. Constitutional commissions, judicial councils or independent review bodies often study such reforms over extended periods before legislation is introduced. Frequently, changes apply prospectively rather than benefiting current office holders. The reason is straightforward.

Constitutional rules governing judges differ from ordinary employment conditions. Judges are not public servants whose tenure may be altered solely according to administrative convenience. They exercise constitutional authority over Governments themselves.

Any alteration to the conditions of judicial office therefore raises questions that extend beyond employment policy into constitutional legitimacy.

ELI-Mount Scopus Standards 

The ELI-Mount Scopus Standards identify several risks that threaten judicial independence.

Among them are political interference, structural tampering with judicial institutions and reforms that unintentionally weaken institutional autonomy.

Equally significant is the emphasis placed on transparent appointments, merit-based selection and preserving the separation of powers.

These principles are not directed at any particular Government. They are designed precisely because democratic systems must remain resilient regardless of who occupies political office.

The Government, for its part, has advanced an understandable argument. It maintains that increasing retirement ages will assist efforts to reduce case backlogs and preserve experienced judicial leadership. Officials have also pointed to ongoing initiatives intended to improve court efficiency and judicial discipline. These objectives deserve serious attention.

Sri Lanka undoubtedly requires comprehensive judicial reform. Delays affecting hundreds of thousands of pending cases impose enormous costs on citizens, businesses and victims seeking justice.

Yet an important question remains. Would extending the tenure of existing Supreme Court and Court of Appeal judges significantly reduce systemic delays? Many legal experts remain unconvinced.

The BASL has noted that the Twentieth Amendment substantially increased the approved number of judges in both superior courts. It argues that no compelling operational necessity has yet been demonstrated for extending judicial tenure.

Others have pointed out that vacancies in the superior courts remain unfilled despite constitutional provision for additional judges.

Whether or not one agrees with these assessments, they illustrate why constitutional amendments should follow broad consultation rather than appear to precede it.

Another constitutional issue has also attracted attention.

Former President Ranil Wickremesinghe has questioned whether judges who stand to benefit directly from an amendment extending retirement ages could appropriately determine constitutional challenges relating to that very amendment.

His observations raise broader principles recognised internationally concerning conflicts of interest and the appearance of impartiality.

Again, this is not a personal criticism of individual judges. Rather, it reflects a longstanding legal principle that justice must both be done and be seen to be done.

Democratic constitutions depend upon this principle.

The broader lesson extends beyond the immediate proposal.

Constitutions are designed to outlast Governments.

Amendments introduced to solve immediate institutional or political concerns inevitably establish precedents that future Governments may invoke under very different circumstances.

Today’s amendment may be proposed by one administration with entirely sincere intentions. Tomorrow, another Government with less benign objectives may rely upon exactly the same precedent.

Constitutional design therefore requires Governments to think not only about today’s needs but tomorrow’s possibilities.

Majoritarian power 

This explains why mature constitutional democracies increasingly emphasise consultation, consensus and institutional independence rather than numerical parliamentary strength alone.

Possessing a two-thirds parliamentary majority undoubtedly provides constitutional authority.

It does not necessarily eliminate the need for constitutional restraint.

Indeed, constitutional history demonstrates that some of the most enduring democratic reforms have emerged through dialogue rather than simple majoritarian power.

The Government would therefore strengthen—not weaken—its democratic credentials by broadening consultation before proceeding further.

An independent committee involving representatives of the Judiciary, Justice Ministry the Bar Association, constitutional scholars and civil society could examine whether judicial retirement ages genuinely require revision, whether prospective application would better preserve public confidence, and whether broader structural reforms would more effectively address delays in the justice system.

Such an approach would demonstrate confidence in democratic deliberation rather than dependence upon parliamentary arithmetic.

Ultimately, judicial independence should never become the property of either Government or opposition. It belongs to the people.

Every citizen relies upon judges who can decide cases without fear, favour or expectation of personal benefit.

That is why respected international institutions—from the European Law Institute to Commonwealth legal scholars and judicial independence experts—consistently emphasise that constitutional reforms affecting judges must preserve not only actual independence but also public confidence in that independence.

Sri Lanka has repeatedly demonstrated its capacity to engage in vigorous constitutional debate.

This moment should be no different. The real issue is not whether judges should retire at sixty-three, sixty-five or sixty-seven. The real issue is whether constitutional change strengthens public trust in the judiciary or unintentionally weakens it.

In every democracy governed by the rule of law, that question deserves careful reflection before constitutional amendments are enacted.

For judicial independence is ultimately not a privilege enjoyed by judges. It is the strongest constitutional guarantee possessed by every citizen. 

References to the ELI-Mount Scopus Standards, the Bangalore Principles of Judicial Conduct, Commonwealth (Latimer House) Principles, Venice Commission guidance, relevant CJEU and ECtHR jurisprudence, and the BASL statement.

(The author is a communications professional with expertise in strategic communication, public affairs, and stakeholder engagement. He holds a Bachelor’s degree in Business from RMIT University, Melbourne, Australia, and a postgraduate degree from Bournemouth University, United Kingdom. Drawing on an interdisciplinary background in business and communication, the author writes on issues relating to economics, public policy, governance, and international affairs)