22nd Amendment judicial independence concerns grow over extending the tenure of sitting judges and the impact on public confidence in Sri Lanka’s courts.
The 22nd Amendment judicial independence debate is not fundamentally about whether Sri Lankan judges can competently serve for another two years. The deeper constitutional issue is whether a sitting Government should extend the tenure of judges who must continue deciding whether that Government acts lawfully.
By M. U. M. Ali Sabry, PC
“There is no liberty if the judicial power be not separated from the legislative and executive.”
Montesquieu, The Spirit of the Laws
The controversy surrounding the proposed Twenty Second Amendment should not be reduced to questions about the intellectual or physical ability of judges to continue serving.
Many judges undoubtedly remain at the height of their experience and professional ability beyond the existing retirement age.
Nor should the debate be personalised around any individual judge or officeholder.
The fundamental question is whether judges already holding office should receive an extension of tenure through a constitutional amendment introduced by the sitting Executive and enacted through its parliamentary majority.
Those judges must continue determining the legality of actions taken by that same Government.
That issue goes directly to the separation of powers, the independence of the Judiciary and public confidence in the administration of justice.
Another issue cannot reasonably be ignored.
The amendment has received apparent urgency and priority even though extending the tenure of sitting judges was not part of the Government’s electoral mandate.
At the same time, several major constitutional and legal reforms expressly promised to the People remain unfulfilled.
Judicial Independence Belongs to Every Citizen
Judicial independence is not a privilege created for judges.
It is a constitutional protection that belongs to every citizen.
Articles 3 and 4 of the Constitution declare that sovereignty belongs to the People and provide for its exercise through the Legislature, Executive and Judiciary.
The Executive governs.
Parliament legislates and exercises oversight.
The Judiciary interprets and applies the law, protects fundamental rights and determines whether governmental power remains within constitutional limits.
These institutions possess equal constitutional dignity, although they perform different functions.
None should become an extension of another.
This separation carries particular importance in Sri Lanka because the Executive will ordinarily command the support of a parliamentary majority.
As a result, the Executive and Legislature may often operate with considerable political alignment.
The Judiciary therefore remains the independent constitutional counterweight entrusted with reviewing governmental action and protecting citizens against misuse of public power.
When a dispute is between citizen and citizen, the judge must remain impartial.
When the dispute is between the citizen and the State, the judge must also be demonstrably independent of the State, without fear or favour.
The judicial oath captures that responsibility.
A judge must perform the duties of office honestly and faithfully, without fear or favour, affection or ill will.
A judge must never fear punishment from the Executive for delivering an unfavourable decision.
Equally, judicial independence should remain protected from even the possibility or reasonable appearance that political authorities can confer favour or reward.
The Constitution currently fixes the retirement age of Supreme Court judges at 65 and Court of Appeal judges at 63.
Every judge accepting appointment therefore knows the date on which his or her constitutional tenure will end.
The Executive, Parliament, legal profession and public know that date as well.
That certainty itself operates as a safeguard.
It ensures that the duration of judicial office does not depend upon the subsequent goodwill, preference or intervention of those exercising political power.
The proposed amendment would increase the retirement age of Supreme Court judges to 67 and Court of Appeal judges to 65.
If the change applied only to judges appointed in the future, Parliament would simply be establishing a new constitutional policy of general application.
However, applying it to sitting judges produces an immediate and identifiable consequence.
Judges whose tenure would otherwise end on a constitutionally predetermined date would receive another two years in office because of an amendment initiated by the Executive and passed by the Government’s parliamentary majority.
Whatever intention the Government may state, the additional tenure can reasonably appear to be a benefit conferred upon sitting judges.
That creates the central constitutional difficulty.
22nd Amendment Judicial Independence and the Appearance of Justice
Lord Hewart’s enduring statement in R v Sussex Justices, ex parte McCarthy remains directly relevant:
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
That principle does not require proof that a decision-maker acted dishonestly.
It is concerned with the appearance of impartiality and public confidence in the administration of justice.
It is therefore insufficient simply to say that Sri Lankan judges are people of integrity and would not be influenced by an extension of tenure.
That may be entirely true.
However, constitutional safeguards do not exist solely because everyone involved is expected to behave honourably.
They are designed to remove circumstances capable of creating influence, obligation or a reasonable perception of partiality.
No allegation of actual bias needs to be made against any sitting judge.
Indeed, it would be wrong to question judicial integrity merely because Parliament changes the Constitution.
The concern is institutional, not personal.
Consider a citizen who enters court to challenge a Government decision.
That citizen may seek protection from unlawful arrest, arbitrary administrative action, violation of a fundamental right, loss of property or abuse of executive power.
That person is entitled to appear before judges whose independence from the Government is beyond reasonable question.
If those judges have just received another two years in office through an amendment introduced by that Government, an unsuccessful citizen may reasonably wonder whether the court remained entirely free from any sense of gratitude, accommodation or institutional obligation.
The judge may, in reality, have acted with complete independence.
But the question may still remain in the public mind.
That doubt itself can damage the administration of justice.
Courts derive a substantial part of their authority from public confidence.
Judgments are accepted because citizens believe that justice is administered independently, impartially and according to law.
Once confidence weakens, important judgments involving the Government become vulnerable to suspicion.
Justice may have been done, but the public may no longer remain certain that it was seen to be done.
Questions Over Motive, Haste and Political Priority
The Government’s motive has therefore become a legitimate part of the constitutional debate.
That is not because improper motive has been proven.
Rather, the timing, urgency and selective priority attached to the amendment inevitably invite scrutiny.
The Government sought and received public confidence on an extensive programme of constitutional and legal reform.
Its manifesto promised a new Constitution, abolition of the Executive Presidency, and repeal or fundamental reform of the Prevention of Terrorism Act and Online Safety Act.
These were not minor campaign commitments.
They were presented as central elements of democratic renewal and a transformation in the relationship between citizen and State.
Yet no new Constitution has been presented.
No transparent constitutional process accompanied by a clear timetable and meaningful public consultation has yet been placed before the country.
The Executive Presidency remains.
The Prevention of Terrorism Act and Online Safety Act also remain part of Sri Lankan law despite repeated assurances of reform, repeal or replacement.
These reforms are unquestionably complex.
They require consultation, careful drafting and, in some cases, approval from the People through a referendum.
It is fair to acknowledge that they cannot all be completed immediately.
However, that explanation makes the speed of the Twenty Second Amendment even more striking.
Extending the tenure of sitting judges was not a policy submitted to voters.
It was not presented as an urgent national priority in the Government manifesto.
Nor does it respond to an immediate constitutional crisis.
Nevertheless, it has advanced with considerably greater urgency than major reforms for which the Government expressly sought a popular mandate.
Citizens are therefore entitled to ask why this unpromised amendment has progressed ahead of the promised new Constitution.
Why has an amendment affecting serving judges received greater urgency than the promised abolition of the Executive Presidency?
Why has the same urgency not accompanied repeal or reform of laws the Government itself described as oppressive or inconsistent with democratic freedoms?
Why must the retirement age change immediately for judges already holding office instead of applying prospectively to future appointees?
These are not inherently partisan questions.
They arise naturally from the Government’s own priorities.
A Reasonable Apprehension Over the Amendment’s Intention
The Government says the amendment is not intended to benefit any particular individual.
It says the objective is to retain judicial experience, reduce delays and improve the administration of justice.
That explanation deserves fair consideration.
Sri Lanka unquestionably requires urgent and comprehensive justice-sector reform.
However, assurances of good intentions alone cannot resolve the constitutional concern.
The practical beneficiaries of the amendment are already known.
The Government knows which sitting judges would remain in office, which anticipated vacancies would be postponed and how the composition of the superior courts would change during the additional period.
Under those circumstances, unexplained urgency may create a reasonable apprehension that the Government wishes to retain judges it considers favourable, acceptable or less likely to obstruct its programme.
That is not an allegation that such an intention has been established.
It is an objective concern arising from the timing, design and immediate consequences of the proposal.
Responsible constitutional criticism must distinguish between alleging misconduct and identifying circumstances capable of producing reasonable doubt.
Misconduct requires evidence.
Reasonable doubt requires the Government to offer a persuasive explanation and adequate safeguards.
When constitutional tenure is being altered, citizens cannot reasonably be required to prove that a private arrangement exists between political authorities and judges.
Instead, the constitutional process itself should be sufficiently transparent, principled and prospective to remove any reasonable suspicion that such an arrangement could exist.
If the measure creates a perception that the Government is preserving a judicial composition it regards as favourable, future judgments in politically significant cases could be judged not only on legal reasoning but through the lens of the tenure extension.
That would be unfair to judges themselves.
It would also damage public confidence.
Separation of Powers Protects Against Both Punishment and Favour
Separation of powers is sometimes understood too narrowly as merely preventing direct Executive instructions to judges.
Political influence does not always take the form of threats, removal or explicit commands.
Influence may also arise through benefits, expectations and changes to conditions of tenure.
The Judiciary must therefore remain protected against both displeasure and favour from the political branches.
A judge should neither fear losing office nor appear indebted for remaining in office.
The amendment does not formally allow the Government to choose which judges receive an extension.
It proposes a general increase in retirement age.
That distinction should be acknowledged.
However, because it applies to those presently holding office, its immediate beneficiaries are identifiable.
The amendment changes the anticipated composition of the superior courts, postpones expected vacancies and affects which judges will continue deciding cases involving the Government.
The Executive and Legislature would therefore be changing the tenure of members of the very institution constitutionally empowered to review and restrain them.
Constitutional scrutiny must consequently examine practical effect rather than general language alone.
Objections Come From Multiple Quarters
Serious concerns have been expressed by the Bar Association of Sri Lanka, organisations representing lawyers and judges, the Commonwealth Lawyers Association, International Association of Judges and the United Nations Special Rapporteur on the independence of judges and lawyers.
Civil society organisations, political parties and the Mahanayake Theros have also raised concerns.
Their statements differ in language and emphasis.
However, several themes repeatedly emerge.
They include the danger of altering the tenure of sitting judges, the appearance of Executive or legislative influence over the Judiciary, inadequate consultation and the absence of transitional safeguards.
Critics have also questioned the introduction of a major constitutional change in a piecemeal manner.
They have challenged the urgency and priority given to the proposal and warned of possible damage to public confidence in judicial independence.
These objections cannot reasonably be dismissed simply as resistance to reform.
When concerns of this seriousness emerge independently from multiple institutions, a responsible Government should pause, consult and reconsider.
A Government does not weaken itself by listening to principled criticism.
It strengthens the legitimacy of its eventual decisions.
A Prospective Reform Offers a Principled Solution
There may be a legitimate case for increasing the retirement age of judges.
Longer life expectancy and the value of accumulated judicial experience justify a serious national discussion.
However, if the proposal represents genuine long-term institutional reform, there is no compelling reason why it must alter the retirement dates of judges already holding office.
A simple safeguard could substantially remove the constitutional difficulty.
Any increase in judicial retirement age could operate prospectively and therefore apply only to future appointments.
That would allow Parliament to establish a new constitutional policy without creating the impression that additional tenure is being granted to identifiable judges.
It would protect the Executive from allegations that it seeks to preserve a judicial composition considered favourable.
It would protect Parliament from claims that its majority is being used to affect the present composition of the courts.
Most importantly, it would protect sitting judges from having future judgments questioned because the Government extended their tenure during their period in office.
No judge should carry the burden of public suspicion generated by a constitutional amendment over which that judge exercised no control.
The Central Test Is Public Confidence
This debate is not about whether individual judges are honourable.
Nor is it about whether improper governmental motive has already been proven.
Constitutional principles must operate independently of personalities.
The question is not whether judges are capable of serving another two years.
It is whether the political branches should confer those additional years upon judges who currently exercise judicial authority over them.
The unexplained speed of this unpromised amendment, while major constitutional and democratic reforms promised to voters remain incomplete, naturally raises questions about political priorities and motive.
The Government therefore owes the country more than an assurance that its intentions are honourable.
It should explain why this amendment is urgent.
It should explain why the change must apply to serving judges.
It should explain why prospective implementation is inadequate.
It should also identify safeguards capable of preventing actual or perceived political influence over the composition of the Judiciary.
Judges must continue deciding every case without fear or favour, affection or ill will.
A citizen challenging the State must have complete confidence that the judge owes nothing to the Government, fears nothing from the Government and expects nothing from the Government.
An extension of tenure granted by the sitting Executive and its parliamentary majority risks unsettling that confidence.
It may create the appearance of a benefit where constitutional distance is required, a possible sense of obligation where complete independence must prevail, and doubt where there should be none.
The Judiciary need not always be popular.
Courts will often make decisions that governments, parliamentary majorities and sections of the public dislike.
But the Judiciary must always remain independent, impartial, unafraid and unwavering.
Judicial independence is the citizen’s final line of defence against unlawful exercises of state power.
It must therefore remain protected not only against punishment and pressure, but also against favour and reward.
Justice must not only be done.
It must manifestly and undoubtedly be seen to be done.
