BASL urges consultative committee on judicial retirement age proposal

Justice Minister Harshana Nanayakkara

The Bar Association of Sri Lanka (BASL) has urged Justice Minister Harshana Nanayakkara to halt any unilateral progress on the proposed constitutional amendment to raise the retirement age of Supreme Court and Court of Appeal judges.

In a letter dated 16 July, the BASL argued that the measure has far-reaching constitutional implications and should instead be subjected to structured consultation through a committee comprising representatives of the Ministry, Judiciary, BASL, and other key stakeholders before any further action is taken.

The BASL statement is as follows:

“At the outset, we have become aware that you have not been well, and wish to convey our wishes for your speedy recovery.

We write this letter with reference to the above matter, which concerns a proposal of considerable constitutional significance and one that has profound implications to the independence of the Judiciary, the administration of justice and the Rule of Law.

At the outset, we respectfully request that you give due consideration to the serious concerns expressed regarding this proposal by the BASL, the wider legal profession, members of the Judiciary, and several eminent Jurists and leading Lawyers’ Organisations both within Sri Lanka and internationally.

You would recall that by our letter dated 30 March 2026, we sought clarification from you to confirm whether the Government was contemplating a constitutional amendment to increase the retirement ages of Judges of the Supreme Court and the Court of Appeal. A copy of that letter is annexed hereto marked “A” for ease of reference.

As no response was received, the BASL subsequently addressed the letter dated 25 May 2026 to His Excellency the President setting out the considered position of the Bar in opposition to any such proposal. A copy of that letter is annexed hereto marked “B”.

In the said communication dated 25 May 2026, the BASL explained that the existing retirement ages of Judges of the Court of Appeal and the Supreme Court have remained unchanged since the promulgation of the Constitution in 1978 and that no compelling institutional necessity has been demonstrated to justify altering those constitutional provisions. It was further pointed out that the recent increase in the approved cadre of both Courts substantially addresses any concerns relating to judicial capacity and workload.

More fundamentally, the BASL expressed the view that any constitutional amendment directed solely at extending the tenure of sitting Judges of the superior courts would inevitably give rise to questions concerning its purpose and motivation and that such a measure would undermine public confidence in the independence of the Judiciary, such perception being built upon both the fact of actual independence, and the public perception that the Judiciary remains entirely free from influence, favour or accommodation.

The BASL also observed that constitutional amendments affecting the superior Judiciary should never be undertaken in an ad hoc manner or in response to temporary circumstances. Amendments of such constitutional importance should only be introduced where there exists a demonstrable institutional necessity, transparent public justification and broad and defensible stakeholder consultation. Public confidence in constitutional governance depends upon the process adopted as much as the substance of the amendment itself.

Regrettably, we have not received any response or official observations in respect of either of the above letters.

In the meantime, this proposal has become a matter of significant public discussion and constitutional concern. It is fair to observe that the proposal has attracted unprecedented opposition from almost every sector connected with the administration of justice. The concerns expressed extend well beyond the Bar Association of Sri Lanka and include members of the Judiciary, former Judges, senior members of the profession, eminent academics, and respected international legal organisations.

The concerns expressed by the above stakeholders were perhaps best encapsulated by Senior Advocate of India, Immediate Past President of LAWASIA and Vice-President of the Indian Bar Association Shyam Divan, who recently observed:

“May I suggest a third factor which I will call the ‘Smell Test’. The Bar Association, comprising so many experienced and venerable practitioners, has a keen and well-developed instinct refined over decades. When something ‘smells wrong’, as it does at this constitutional moment, citizens have a reliable guide in the BASL. The Bar Association knows something is amiss, something that compromises the independence of the Judiciary and the Rule of Law. The move to amend the Constitution by extending the retirement age of superior court Judges fails the Smell Test.”

We also note that according to a statement made by the Cabinet Spokesperson following the Cabinet Meeting held on 14 July 2026, the Ministry of Justice has been requested to submit its report and observations before Cabinet reaches a final decision on this proposal.

This development presents an important opportunity to ensure that any report ultimately placed before Cabinet reflects the views of the principal stakeholders in the justice sector who have the experience and insight to objectively provide feedback and response in this matter and all others who would be interested.

You would no doubt appreciate that, over many decades and under successive Governments, it has been the established practice of the Ministry of Justice to consult the BASL on legislative and policy initiatives affecting the administration of justice. This longstanding practice reflects the important constitutional role performed by the BASL as the representative body of the legal profession and its continuing responsibility to uphold and safeguard the Rule of Law, the Independence of the Judiciary, and the proper Administration of Justice.

In fact, you are aware that the BASL is represented even presently in all other justice sector initiatives.

In our respectful view, the present proposal, involving as it does a constitutional amendment directly affecting the superior Judiciary and attracting serious concerns from both the Bench and the Bar, is a matter of exceptional constitutional importance. It ought not to be considered solely through the ordinary administrative process but should instead be informed by structured consultation with all principal stakeholders.

In those circumstances, we respectfully request that you be pleased to constitute an appropriate committee comprising representatives of the Ministry, the Judiciary, the BASL, and such other stakeholders as may be considered appropriate, for the purpose of studying the proposal comprehensively and submitting an objective report before any further steps are taken.

We further request that a delegation comprising members of the Executive Committee of the BASL together with Senior President’s Counsel and Senior Members of the profession be afforded an opportunity to meet with you at your earliest convenience so that these matters may be discussed fully.

The BASL remains ready and willing to assist the Ministry in any consultative process that may be established. We sincerely hope that no further steps will be taken in relation to this proposal until meaningful consultation has taken place with the principal stakeholders of the justice sector.

We look forward to your favourable response.”