Public perceptions of the judiciary vital for democracy

It is not unusual for Sri Lanka’s judiciary to come under the scanner from time to time. 

The main reason is the public perception, at times, that certain persons serving in the high echelons of the judiciary work according to the whims of those who hold political power. It is not an entirely new phenomenon. 

Former Presidents J.R. Jayewardene, Chandrika Kumaratunga, and Mahinda Rajapaksa have all been in situations where fingers were pointed at them for interfering with the judiciary and for placing persons of their choice in high judicial office. The same inferences are beginning to surface and, this time, it is President Anura Kumara Dissanayake who is in the hot seat.

The latest concern is over alleged moves to increase the retirement age of members of the judiciary, including judges of the Supreme Court and the Court of Appeal. The Bar Association of Sri Lanka (BASL) stepped in yesterday to call on the President not to proceed with any proposed constitutional amendment in this connection, stating that such a change is neither necessary nor desirable and could undermine public confidence in the judiciary and the Government’s commitment to safeguarding judicial independence and the rule of law.

In a letter addressed to the President, the BASL maintained that the retirement ages of judges of the Court of Appeal and the Supreme Court, fixed at 63 and 65 years respectively since the promulgation of the 1978 Constitution, should not be altered arbitrarily.

The BASL warned that the public may question the motives behind a constitutional amendment introduced solely for the purpose of extending judicial tenure, adding that the number of judges in both superior courts had already been substantially increased through the 20th Amendment to the Constitution in 2020, raising the Court of Appeal bench from 12 to 20 judges and the Supreme Court from 11 to 17 judges.

Other than the BASL, there have been many political commentators who have weighed in on this issue.

All this comes as the judiciary is under more scrutiny than ever before, given the high-profile, politically sensitive cases that judges are required to rule on regularly. Given that most cases are against those who held office in the past, allegations of bias are expected from one side, but what would be concerning is if there is a broader public perception that the judiciary is being swayed by political interests.

Raising the retirement age of judges by itself may not be an issue if there were no concerns that it is driven by political interests. 

In many areas of work, retirement ages are being raised given that people live longer and healthier lives well into their 80s due to advances in modern medicine and better healthcare. In the United States, Supreme Court justices do not have a mandatory retirement age, with federal judges and Supreme Court justices serving lifetime appointments, often referred to as serving “during good behaviour.” By contrast, in India, Supreme Court judges retire at 65, as in Sri Lanka. There have been discussions about increasing the retirement age for judges in Sri Lanka in the past as well, but the general mood has been that this is not necessary and that 65 is an appropriate retirement age.

The President’s comments a few weeks ago about an impending court order on a particular date set off a salvo of criticism and raised questions as to whether he was privy to a court order before it was made. Similarly, the President has been making public comments to the effect that 2026 will be the year that the corrupt will be jailed. Such comments do little to enhance the image of either the President or the judiciary in the public eye and will only intensify concerns about political interference.

The judiciary has its own unique role to play in the country, and the most important is dispensing justice to the people of this country. This must remain above any political, ethnic, or religious interests. Just as the public keeps politicians under scrutiny, it also keeps a close eye on the Legislature and the Judiciary. Hence, any perception of bias will not help in winning public confidence.