When the risk is judicial independence, a President must not take it

There is much to admire in President Anura Kumara Dissanayake’s assertion that meaningful change sometimes requires political courage and a willingness to take risks.

But there is a question that must be asked before that principle is applied to the proposed 22nd Amendment to the Constitution.

What if the risk is to the independence of the judiciary?

That is where the argument for risk-taking must stop.

A President may take a political risk. He may take an economic risk. He may take an administrative risk. He may even risk his own political career in pursuit of a reform he sincerely believes is necessary.

But judicial independence is not a risk that belongs to the President to take.

It belongs to the people.

Sri Lanka’s debate over 22A

That distinction should now be at the centre of Sri Lanka’s debate over 22A.

The proposed amendment would raise the retirement age of Supreme Court judges from 65 to 67 and that of Court of Appeal judges from 63 to 65. The Government says the measure is part of a broader effort to strengthen the administration of justice, address shortages of judicial officers and deal with the country’s enormous case backlog. President Dissanayake has also made clear that he rejects the suggestion that the proposal was designed to benefit any particular judge or group.

Those assurances deserve to be heard.

But good intentions do not remove constitutional risk.

And the Government’s legitimate objective does not automatically validate every means chosen to achieve it.

There is nothing inherently objectionable about a country deciding that judges should retire at 67 rather than 65. Different constitutional systems adopt different retirement ages. The difficult question is whether the tenure of judges already sitting in the superior courts should be altered by an ad hoc constitutional amendment, and whether doing so could affect judicial independence or public confidence in it

The real issue is not retirement age

There is nothing inherently objectionable about a country deciding that judges should retire at 67 rather than 65. Different constitutional systems adopt different retirement ages.

The difficult question is whether the tenure of judges already sitting in the superior courts should be altered by an ad hoc constitutional amendment, and whether doing so could affect judicial independence or public confidence in it.

That is a very different question.

The distinction between a prospective rule and one affecting incumbent judges is fundamental. A Parliament may decide that judges appointed in the future should retire at a different age. But changing the tenure of judges already exercising constitutional authority inevitably raises a more serious concern.

It can affect the composition of the very courts that may later be required to determine the legality or constitutionality of Government action.

That is why this debate cannot be reduced to whether judges are physically capable of working for another two years.

The issue is security of judicial tenure.

And security of tenure is not a perk for judges. It is a safeguard for the public.

The Constitution already gives us a warning

Sri Lanka’s Constitution declares in Article 3 that sovereignty is in the people and is inalienable. The independence of the judiciary must therefore be understood not as an institutional privilege but as part of the constitutional machinery through which the sovereignty of the people is protected.

This is not merely a political interpretation.

The Supreme Court has previously addressed the question directly. In its 2022 Constitutional determination concerning the Inland Revenue (Amendment) Bill, the Court stated that the retirement ages of Supreme Court and Court of Appeal judges are constitutionally specified and that a constitutional amendment affecting the retirement age or period of service of incumbent judges would impinge upon judicial independence and violate Article 3, requiring a referendum.

The precise constitutional consequences of the present Bill will, of course, depend upon its actual provisions and the constitutional determination applicable to it.

But that makes the Government’s responsibility greater, not smaller.

When there is a serious constitutional question concerning the tenure of incumbent judges, the answer cannot be: “We believe this is necessary, so we will proceed.”

The answer must be: “Let us examine the constitutional question fully and transparently before we proceed.”

The UN warning should make the Government pause

That caution has now acquired considerable international weight. Margaret Satterthwaite, the UN Special Rapporteur on the independence of judges and lawyers, has expressed concern that the proposed amendment, in its reported form, could affect the tenure of sitting judges and raise questions about executive and legislative interference with judicial independence. She has called for a transparent, inclusive and consultative reform process with appropriate safeguards.

This should not be dismissed as an attempt by an international body to dictate Sri Lanka’s constitutional policy.

It is a warning about a principle recognised across democratic constitutional systems: judges must be secure in their tenure and protected from improper political influence.

The Venice Commission and other international standards have similarly treated judicial tenure and retirement arrangements as matters directly connected to judicial independence.

When domestic legal concerns and international judicial-independence standards point in the same direction, a prudent Government does not accelerate.

It pauses.

The case-backlog argument also requires scrutiny

The Government’s stated objective is important. Sri Lanka’s justice system has an enormous backlog. No serious person can dispute the need for reform.

But the question is whether changing the retirement age of superior-court judges is the most appropriate or least constitutionally risky response.

Legal experts have pointed out that the overwhelming majority of the reported 1.1 million outstanding cases are in Magistrates’ Courts, District Courts and High Courts rather than the Supreme Court and Court of Appeal.

There are also unresolved vacancies in the superior courts. The BASL has argued that these vacancies should be filled and has questioned whether extending retirement ages is an appropriate priority for addressing the backlog.

These are not arguments against reform.

They are arguments for better-targeted reform.

If the problem is delay, increase capacity where the delay actually occurs.

If the problem is vacancies, fill vacancies.

If the problem is infrastructure, build infrastructure.

If the problem is case management, modernise case management.

If the problem is the number of judges, increase judicial capacity through constitutionally appropriate means.

Why begin with a measure that carries a special constitutional sensitivity concerning the tenure of incumbent superior-court judges?

That question has not been adequately answered.

The Government should therefore stop — not because reform is wrong, but because this reform carries an unacceptable constitutional risk

This is the crucial distinction.

Sri Lanka desperately needs judicial reform

Those opposing 22A should not be portrayed as opposing judicial reform.

What they are saying is that the reform must not come at the price of weakening the institution that guarantees the rule of law.

That is a reasonable position.

Indeed, it is the position a Government committed to constitutional democracy should take itself.

The President has said that he is willing to take risks for change.

The Supreme Court has previously addressed the question directly. In its 2022 Constitutional determination concerning the Inland Revenue (Amendment) Bill, the Court stated that the retirement ages of Supreme Court and Court of Appeal judges are constitutionally specified and that a constitutional amendment affecting the retirement age or period of service of incumbent judges would impinge upon judicial independence and violate Article 3, requiring a referendum.

The precise constitutional consequences of the present Bill will, of course, depend upon its actual provisions and the constitutional determination applicable to it. But that makes the Government’s responsibility greater, not smaller

But the relevant question is not whether he is personally willing to bear the risk.

Who bears the risk if he is wrong?

The President can bear the consequences of an unpopular policy.

He can lose an election.

He can lose political support.

He can even lose office.

But the consequences of a weakened judiciary are borne by citizens who may one day need an independent court to protect them from the Government itself.

That is why this is not the President’s risk to take.

The judiciary does not belong to the President.

It does not belong to Parliament.

It does not belong to the Government.

It belongs within the constitutional structure established to protect the people.

A President should listen when the experts raise a constitutional alarm

The BASL has opposed the proposal and called for broader consultation. Its meeting with the President on 12 August ended without agreement.

The UN Special Rapporteur has raised concerns.

Constitutional lawyers and academics have raised questions.

The Opposition has called for a referendum.

Professional legal organisations have urged caution.

These voices may not all agree on every constitutional detail. They may have different political perspectives.

That is precisely why they should be heard.

A Government that is confident in its case should have nothing to fear from a rigorous public examination.

Publish the Bill.

Publish the constitutional reasoning.

Explain why incumbent judges must be included.

Explain why the vacancies cannot first be filled.

Explain why the proposed measure is necessary to deal with the backlog.

Explain what safeguards will prevent actual or perceived interference with the judiciary.

Invite the BASL, constitutional scholars, academics, former judges, practicing lawyers and civil society to scrutinise the proposal.

And if the Constitution requires the people to decide, let the people decide.

Consultation is not weakness.

Retreating from a dangerous constitutional course after hearing compelling objections is not defeat.

It is responsible Government.

The President’s greatest act of courage may be to stop

President Dissanayake has said that change requires risk.

Perhaps it does.

But constitutional Government also requires knowing which risks are unacceptable.

A Government may gamble with a policy.

It must not gamble with the institution that stands between the citizen and arbitrary power.

The question therefore is not whether 22A is intended to benefit a particular individual. The Government’s assurance on that point should be taken seriously.

The deeper question is whether the amendment, because of its effect on incumbent judges and the constitutional circumstances in which it is being introduced, creates a risk to judicial independence or to public confidence in that independence.

If there is such a risk, that is sufficient reason to stop and reconsider.

Not because the President is weak.

Not because reform is unnecessary.

Not because judges should never retire at a different age.

But because some constitutional principles are too important to become experiments.

Judicial independence is one of them.

The President has said that he is prepared to risk his own position for the people.

That may be political courage.

But there is a greater form of constitutional courage: recognising that there are institutions whose independence is more important than any Government’s reform agenda.

The President can risk his office.

He cannot risk the independence of the judiciary.

The judiciary does not belong to the President.

It belongs to the Constitution.

And ultimately, it belongs to the people.

That is why the Government should stop 22A in its present form, subject it to genuine and comprehensive consultation, examine less constitutionally hazardous alternatives, and follow the constitutional process to its fullest extent—including a referendum if the Constitution requires one.

The choice is not between reform and paralysis.

It is between reckless reform and responsible reform.

Sri Lanka needs the latter.

And if the President truly believes that there is a risk to judicial independence, then he has already been given the most important reason to reconsider.

When the risk is to the judiciary, the right response is not to take the risk. It is to remove it.