COLOMBO, Sri Lanka: Sri Lanka's Supreme Court has determined that a constitutional amendment raising the retirement age of judges can become law with a two-thirds majority in Parliament and does not require approval by the people at a referendum, the Speaker, Jagath Wickramaratne, told lawmakers on Tuesday.
The court also determined that a companion bill amending the Judicature Act, which would extend the tenure of judges in the lower courts, is not inconsistent with the Constitution and may be passed by a simple majority.
The court directed two changes to the constitutional amendment: a correction to the Sinhala wording of one provision, and a new clause exempting the sitting chief justice from a proposed six-year limit on the office.
The Committee on Parliamentary Business has scheduled debate on the amendment for Thursday and Friday. The governing National People's Power won 159 of Parliament's 225 seats in the November 2024 election, more than the 150 votes needed. President Anura Kumara Dissanayake has said the government will move quickly to pass it.
The determination rejected the central constitutional argument advanced by the Bar Association of Sri Lanka and other petitioners, who contended that extending the terms of serving judges could compromise judicial independence. It was issued by a bench led by Chief Justice P. Padman Surasena, whom the Bar Association had asked to withdraw from the case because the extension would apply to him first.
What the bills would do
The 22nd Amendment to the Constitution, presented to Parliament on Aug. 18 by the Minister of Justice and National Integration, Harshana Nanayakkara, would amend Article 107(5) to raise the retirement age of Supreme Court justices from 65 to 67 and of Court of Appeal judges from 63 to 65. A proviso would require future chief justices to leave office at 67 or after six years in the post, whichever comes first. A separate clause would raise the maximum size of the Court of Appeal from 20 judges, including its president, to 25.
The Judicature (Amendment) Bill would raise the retirement age of High Court judges from 61 to 63, fix it at 62 for all other judges and magistrates, and raise the maximum number of High Court judges from 110 to 120. Until now, the retirement age of district judges and magistrates has been set by rules the president issues under a 1910 ordinance. The court described moving it into an act of Parliament as a step toward strengthening their security of tenure.
All the extensions would apply to judges now serving.
The legal question
For a bill that amends the Constitution, Article 120 limits the Supreme Court to a single question: whether the bill requires approval at a referendum under Article 83. Article 83 entrenches a short list of provisions, among them Article 3, which vests sovereignty in the people and defines it to include the powers of government, fundamental rights and the franchise.
The petitioners built their case on a 2022 determination, on the Industrial Disputes (Special Provisions) Bill, in which the court held that sovereignty under Article 3 includes the right to an independent judiciary. On that reasoning, a bill that impairs judicial independence is inconsistent with Article 3 and must go to the people.
The bench accepted that principle. "We fully concur," the judges wrote of the 2022 holding, and they described judicial independence as the bedrock of the justice system. The case therefore turned on whether these bills impair judicial independence. The court concluded that they do not.
The conflict of interest
The bench, which also included Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath B. Abayakoon and K. M. Gihan H. Kulatunga, heard the petitions on Sept. 1 and 2, sitting until 10:30 p.m. on the first day. The Speaker told Parliament that 67 petitions had been filed; the determination refers to 72.
When the hearing opened, the petitioners' lawyers asked for the case to go to the full court of 13 justices, or to a bench of the other 12 without the chief justice. The five judges refused unanimously that morning. Under Article 132(3), they said, only the chief justice may decide that a case of public importance be heard by five or more judges, and he had done so in a minute dated Aug. 31. Granting the request, they wrote, would have amounted to the other judges reviewing a decision the Constitution leaves to him alone.
The petitioners also relied on Section 49(3) of the Judicature Act, which bars a judge from hearing a matter in which he is personally interested, and some warned that the judges could face prosecution under the Anti-Corruption Act of 2023. The court said the provision had no application, and that if the argument were accepted, no judge of the court could hear the case. It relied on the rule of necessity, citing the United States Supreme Court's 1980 decision in United States v. Will, and on a 1983 Sri Lankan case in which the court decided a challenge to the validity of its own judges' oaths.
The judges said a referendum could not take the place of their ruling, because a referendum decides whether the people approve a bill and does not decide whether it is constitutional.
The court used strong language in this part of the ruling. It called the argument that the bills were a "legislative bribe" an affront to the judges and a calculated attempt to intimidate them with the threat of prosecution. It described the recusal motion as a subtle attempt to fix benches, remarked on what it called a growing number of vexatious petitions, and urged a purposive reading of Section 49 in future cases where a party seeks to exclude a judge by alleging an interest that does not exist.
Extension and reduction
On the merits, the court drew a line between shortening a judge's tenure and lengthening it.
The petitioners cited a 2022 determination on an Inland Revenue bill, in which the court said any constitutional change to the retirement age "impacting on the incumbent judges, whether directly or indirectly" would violate Article 3 and require a referendum. The bench acknowledged that the court had said so. Read with the preceding paragraph, it said, the statement concerned proposals to cut judges' tenure, and the petitioners had quoted it out of context.
The judges reasoned by analogy to pay. Article 108 prohibits reducing a judge's salary or pension after appointment, because the threat of a reduction can make judges beholden to the executive. It does not prohibit increases, and the court noted that the petitioners' lawyers conceded that raising judges' salaries is not an inducement. "We have to apply one yardstick to both," the judges wrote, concluding that an increase in retirement age likewise cannot be an inducement.
They listed other benefits the state has given judges over the years, including official cars, land, security and school admissions for their children, and said no one had suggested these compromised the judiciary. The petitioners, they wrote, appeared to regard judges as people who, like Oliver Twist, always want more. The court also noted that the petitioners had not pointed to any judge who asked for the extension.
The court placed weight on two features the Solicitor General, Viraj Dayaratne, emphasized: the extension applies to every judge in every court, and it takes effect automatically, leaving no discretion with the executive. On that basis, it distinguished the 2011 ruling of South Africa's Constitutional Court in Justice Alliance of South Africa v. President of the Republic of South Africa, which struck down a law allowing the president to extend the chief justice's term. The Sri Lankan judges quoted that court's holding that Parliament, in extending judges' terms, may not single out the chief justice, and that age is a neutral criterion that may be applied to all.
Court packing, consultation and public perception
The court rejected the argument that the bills were an exercise in "court capture." The judges now serving were appointed under earlier governments with the approval of the Constitutional Council, it said, and extending their terms delays the vacancies a government seeking to appoint its own judges would need. It criticized petitioners for citing the American scholar David Landau's article on "abusive constitutionalism," saying the examples in it had no application to Sri Lanka and that invoking them disparaged the country.
On consultation, the court cited Article 124, which bars any court from examining a bill's compliance with the legislative process outside the procedure in Articles 120 to 122. It said the petitioners had identified no law requiring the government to consult the legal profession or the public, or to have included the proposal in its election manifesto. On the argument that the public would see the extension as interference, it said a finding of unconstitutionality cannot rest on surmise and conjecture.
The court treated the rest of the government's rationale as policy, applying its long-standing rule that it will not intervene unless a policy is manifestly unreasonable. It found no basis to call these bills unreasonable.
The chief justice's term
Some petitioners challenged the proviso capping future chief justices at six years. Ali Sabry, a former justice minister appearing for the former foreign minister G. L. Peiris, argued that it could force a chief justice appointed at 57 to leave at 63.
The court upheld the cap. It found the proviso prospective, as the Solicitor General had submitted, and said a future appointee who accepts the office on those terms suffers no reduction in tenure. The judges said limiting the term of an official who also chairs the Judicial Service Commission and several judicial boards would guard against concentration of power, and noted similar limits in Germany, France and Bhutan.
No petitioner argued that the cap would shorten the current chief justice's term, and the court described the issue as a purely conceptual concern. It nonetheless recommended adding a second proviso stating that the six-year limit will not apply to anyone holding the office of chief justice when the act takes effect. Cutting the term of a serving chief justice, the court said, would violate the constitutional safeguards for judicial tenure. The clause, if adopted, would apply to one person, Chief Justice Surasena.
The court also found that five petitioners had delivered copies of their petitions to the Speaker after the deadline in Article 121(1), and said those petitions should have been rejected at the threshold.
What critics say
Arguing for the bar association, M. A. Sumanthiran, a President's Counsel and former Jaffna district lawmaker, told the court that judges must be able to rely on a tenure that never changes, because a judge who can be rewarded with a longer term can be influenced. He said altering the terms of sitting judges, as opposed to future appointees, was interference with judicial independence.
According to the court's summary of the petitions, the petitioners also argued that the government had not consulted stakeholders, that the proposal was absent from its election manifesto, and that the bills were a form of court capture, including through court packing.
The opposition leader, Sajith Premadasa, has argued that the government should have applied the higher retirement ages only to future appointees, and that the measure does not address the backlog of 1.1 million cases. He has called the two bills a "fatal blow" to judicial independence. Last week, before the determination reached Parliament, he asked publicly how the president had become aware of the court's ruling. His party, the Samagi Jana Balawegaya, has called a protest for Thursday, the first day of the debate.
In a communication to the government dated Aug. 7, Margaret Satterthwaite, the United Nations special rapporteur on the independence of judges and lawyers, warned that extending the tenure of serving superior court judges could affect judicial independence and public confidence, and might not be consistent with international human rights standards.
The determination notes that in 2016 the bar association, under its then president, Geoffrey Alagaratnam, recommended raising the Court of Appeal retirement age to 65, and that a subcommittee on the judiciary of the Constitutional Assembly's steering committee made the same recommendation. Mr. Sumanthiran and Udaya Gammanpila, a petitioner in this case, sat on that subcommittee. Mr. Alagaratnam appeared in this case as counsel for another petitioner.
The government's case
Mr. Nanayakkara has said the aim is to keep experienced judges on the bench to reduce the backlog, and that Sri Lanka has about 20 judges per million people, compared with 40 to 60 in developed countries. The proposal went to the cabinet in a note dated July 3 and received policy approval on July 27.
Mr. Dayaratne told the court that the retirement age of Supreme Court judges rose from 62 under the 1946 Constitution to 63 in 1972 and 65 in 1978, and has not changed since, while that of public servants rose from 55 to 60. He cited Britain, which restored a mandatory judicial retirement age of 75 and applied it to serving judges.
Sri Lanka's higher judiciary has been drawn into political conflict before. In 2013, Parliament impeached Chief Justice Shirani Bandaranayake after rulings against President Mahinda Rajapaksa's government. A 2020 constitutional amendment gave the president wider control over judicial appointments, and a 2022 amendment restored the Constitutional Council's role in approving them.
