Extending retirement age of judges – is judicial independence at stake?

The Government’s proposed move to extend the retirement age of judges by 2 years has caused a great sense of uneasiness as well as anxiety among the civil society and good governance activists in the country. 

Initially, the NPP administration was thinking of extending the retirement age of only Supreme Court and Appeal Court judges, however; it is now reported that the proposed action attempts to stretch the pension age limit of judges of all courts in the country; including magistrate, district, and high court.

The revision to the initial proposal would have been influenced by the need to obtain the endorsement to the controversial proposal from all branches of the country’s judiciary. It also comes in the backdrop of the Judicial Service Association (JSA) having unanimously resolved to disagree with the Government’s proposal to extend the retirement age of judges of the Supreme Court and the Appeal Court. The JSA is the professional organisation representing magistrates and district judges in the country.

The retirement age of the superior court judges in Sri Lanka is determined by the Constitution of Sri Lanka - Supreme Court Judges 65, Appeal Court Judges 63, and High Court Judges 61. A constitutional amendment is necessary to change the retirement age of judges and given that the NPP has a comfortable 2/3rd majority in the legislature, it is well-positioned to effect the change desired by them.  

Proponents of the contentious suggestion opine that the intended course of action is beneficial given the shortage of judges, delays in court cases apart from the need to retain experienced judges. Moreover, some view the extension of the retirement age as necessitated by the rapid population ageing in the country. In the event the retirement of judiciary officials is extended, employees belonging to other professions like academia, healthcare, and public administration too could agitate for similar benefits.

Over the last few months, various groups, both nationally and internationally, have stepped up their opposition to the Government’s alleged measure to tamper with the independence of the judiciary. 

The Commonwealth Lawyers Association has requested the Sri Lankan Government to refrain from going ahead with the constitutional amendment, as it would undermine public confidence in the judiciary. Meanwhile, the Bar Association of Sri Lanka has contended that the existing retirement ages of Appeal Court judges and Supreme Court judges have remained in place since the establishment of the 1978 Constitution and should not be altered without compelling justification. 

The premier professional body had pointed out that the number of judges in both courts was significantly increased through the 20th Amendment to the Constitution of Sri Lanka, which expanded the Court of Appeal from 12 to 20 judges and the Supreme Court from 11 to 17 judges. Hence, the association had emphasised that such increases in judicial capacity negate any practical need for extending the tenure of superior court judges.

Critics have viewed that a main objective of the proposal is to keep the incumbent Chief Justice, Preethi Padman Surasena, in office for two more years, as he is due to retire this December under the existing provisions. Any constitutional amendment which intends to benefit a few selected judges raises serious question marks over the sincerity of the Government’s intentions and the public could view superior courts of the country being partial towards the ruling political dispensation.

The NPP came into power by pledging to safeguard the independence of the judiciary. Regrettably, the hasty initiative is widely seen as politically motivated and could snowball into a highly damaging political confrontation. It could also attract unwarranted scrutiny from international organisations like the EU and Commonwealth, which could impair the country’s image. 

In view of such possible damaging consequences, the Government is well-advised to apply brakes and have a broader public discussion on extending the tenure of judges before going ahead with the constitutional amendment.