President Anura Kumara Dissanayake came to power promising a break with a political establishment discredited by economic collapse, corruption and public anger over the way power had been exercised. His anti-corruption message was central to his 2024 presidential campaign, and voters subsequently handed his National People’s Power coalition an extraordinary 159 of Parliament’s 225 seats. It was a mandate not merely to replace the people governing Sri Lanka, but to change the political habits by which it had been governed.
That is why his Government’s latest constitutional proposal is so troubling.
On 7 August, the Government gazetted the Twenty-Second Amendment to the Constitution, which would raise the mandatory retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65. The bill would also require the chief justice to retire at 67 or after six years as chief justice, whichever comes first, and increase the maximum number of other Court of Appeal judges from 19 to 24. The four-section bill replaces the existing retirement-age provision without creating a transitional exemption for judges already serving. It therefore stands to change not merely the terms on which future judges enter office, but the tenure of identifiable judges already sitting on Sri Lanka’s highest courts.
There is nothing inherently improper about a Supreme Court judge serving until 67. Many countries permit judges to remain in office considerably longer, and there is a respectable argument that Sri Lanka should retain experienced jurists rather than lose them at comparatively young retirement ages. Reducing the controversy to a debate about whether 65 or 67 is the better number, however, misses the constitutional problem. The real question is whether politicians should be able to change how long judges already in office remain there, when those judges exercise the power to review the legality and constitutionality of actions taken by the political branches themselves.
The Government has offered a defence that deserves to be taken seriously. Dissanayake has said the change is not intended to benefit any individual or group and has placed it within a broader program to improve the administration of justice. The Government is also seeking to expand judicial capacity and strengthen institutions including the Attorney General’s Department, police, anti-corruption machinery and Government Analyst’s Department. Sri Lanka’s Bar Association, after meeting the president this week, said it did not object in principle either to increasing the number of judges or to reconsidering retirement ages, but urged broader expert consultation before such a change is made.
The problem is that good intentions are not a constitutional safeguard.
Judicial independence
Judicial independence is usually understood as protection against punishment. Governments must not dismiss judges because they dislike their decisions, threaten their livelihoods or manipulate their conditions of service to secure favourable judgments. But independence has another side that receives less attention: judges must also be insulated from political favour. If politicians should not be able to shorten the career of a judge they want removed, there should be equal caution when politicians acquire the capacity to lengthen the careers of judges already in office.
This is not an allegation that Dissanayake is attempting to purchase judicial loyalty. There is no publicly established evidence of such a bargain, and alleging one would distract from the more important institutional question. Constitutions do not exist because Governments can always be trusted to use power honourably; they exist because eventually a Government may not. The relevant test is therefore not whether Sri Lankans believe this President has benign motives. It is whether Sri Lanka should establish a precedent under which any president backed by a sufficiently large parliamentary majority can change the tenure of judges already responsible for checking political power.
Warning by United Nations Special Rapporteur
That concern has now travelled far beyond Sri Lanka’s domestic political debate. On 7 August, Margaret Satterthwaite, the United Nations Special Rapporteur on the independence of judges and lawyers, sent the Sri Lankan Government a formal communication warning that the proposed amendment could raise concerns under international standards protecting judicial independence and the right to a fair trial. Most significantly, she focused on the proposal’s effect on sitting judges rather than future appointments, describing judicial tenure as a core safeguard of independence and referring to international standards requiring security of tenure until a predetermined retirement age or expiry of office.
Satterthwaite’s warning goes directly to the weakness in the Government’s case. She noted that the Venice Commission has repeatedly cautioned against changes to retirement ages or judicial terms that apply retrospectively to serving judges without appropriate transitional arrangements. While acknowledging that retaining judicial expertise can justify increasing a retirement age, she warned that reforms affecting tenure require particularly robust safeguards precisely because courts constrain executive and legislative power. The absence of transitional protections, she argued, risks making a generally worded reform appear to alter the immediate composition of the judiciary for institutional purposes rather than establish a neutral rule for the future.
There is an additional difficulty that should alarm the Government. The Special Rapporteur observed that judges who stand to benefit from the extension could conceivably be required to determine the constitutionality of the amendment itself. That situation would not automatically establish actual bias. But the absence of mechanisms to address the potential conflict, she warned, could undermine confidence in the appearance of judicial impartiality. She therefore asked Sri Lanka to explain why the higher retirement age should apply to currently serving judges rather than only future appointees, what consultations had been undertaken, and what safeguards would prevent actual or perceived political interference.
The UN is not alone. The Commonwealth Lawyers Association warned in June that constitutional amendments affecting judicial tenure should not be made in a piecemeal or ad hoc fashion and should be preceded by proper public and stakeholder consultation. LAWASIA subsequently endorsed those concerns, arguing that the proposal had the appearance of an ad hoc initiative without adequate consultation and could undermine public confidence in judicial independence. The International Association of Judges has likewise stressed that its concern is not with changing retirement ages as a general policy, but with the timing, manner and perceived purpose of Sri Lanka’s proposal.
International examples
That distinction is crucial because international experience demonstrates that increasing a judicial retirement age is not inherently an attack on democracy. Britain raised the mandatory retirement age for many judicial office-holders from 70 to 75. But the British Government first conducted a formal consultation lasting three months and received 1,004 responses from judges, magistrates, lawyers and other stakeholders. Its review explicitly considered the competing consequences of a higher retirement age: retaining expertise and increasing judicial resources on one hand, while potentially slowing the flow of new appointments and affecting the composition and diversity of the judiciary on the other. The reform proceeded after that debate, not before it.
Australia offers an even clearer lesson about tenure. Until 1977, federal judges were appointed for life. Australians then approved a constitutional amendment establishing compulsory retirement at 70, but the alteration did not disturb judges who had been appointed under the previous tenure arrangements. Australian parliamentary records make clear that judges appointed before the constitutional change retained their existing position while the new retirement rule governed subsequent appointments. The direction of the reform was opposite to Sri Lanka’s, but the constitutional principle is instructive: Governments can change the rules governing the judiciary without rewriting the tenure attached to appointments already made.
Zimbabwe provides the cautionary example. In 2021, constitutional changes allowed senior judges to remain in office beyond the previous retirement age of 70, and President Emmerson Mnangagwa extended Chief Justice Luke Malaba’s tenure as he reached the old limit. Litigation followed and the controversy became inseparable from a larger argument about executive influence over the judiciary. Sri Lanka is not Zimbabwe, and equating the two Governments would be both inaccurate and intellectually lazy. The relevant lesson is narrower: when a constitutional amendment produces an immediate extension of tenure for identifiable senior judges, suspicion about who benefits can overwhelm whatever institutional rationale the Government originally offered.
For a judiciary, that suspicion is not a trivial public-relations problem. Courts ultimately rely upon citizens believing that judges approach disputes without political obligation. Consider the entirely avoidable position Sri Lanka could create: a citizen challenges an important act of the Government before judges whose retirement dates were extended because that same Government initiated a constitutional amendment and its parliamentary majority enacted it. The judges could be completely independent. Their reasoning could be impeccable. Nothing about receiving the benefit of a generally worded law proves gratitude or bias. Yet constitutional design should try to eliminate such doubts, not manufacture them and then insist that the public disregard them.
Enormous court backlog
Nor does Sri Lanka’s enormous court backlog resolve the problem. The Government is right that judicial delay is serious and that retaining experienced judges may have some administrative value. But its own reform program demonstrates that congestion is a system-wide problem involving judicial numbers, prosecution, policing, forensic capacity, administration and infrastructure. Expanding courts, filling vacancies and improving those institutions attack capacity constraints directly. Extending the retirement dates of the people already occupying senior judicial office is a much blunter intervention, while also slowing the vacancies and promotions through which judicial institutions renew themselves. Britain’s own retirement-age review openly acknowledged the trade-off between retaining experienced judges and maintaining a steady flow of new appointments.
Sri Lanka therefore faces a false choice if this debate is presented as one between retaining judicial expertise and preserving judicial independence. It can do both. If 65 and 63 are no longer appropriate retirement ages, the Government can demonstrate that with evidence, consult the judiciary, the Bar, legal scholars and civil society, examine the effects on succession and court capacity, and establish a higher retirement age through a carefully designed reform. It can then adopt transitional provisions that prevent the change from appearing to be additional tenure bestowed by the political branches upon judges already in office. That is essentially what the UN Special Rapporteur has asked Colombo to explain.
Larger political question
For Dissanayake, however, there is a larger political question. His Government does not lack the parliamentary strength to force through ambitious reforms. The NPP controls 159 seats, comfortably more than two-thirds of Parliament. That makes self-restraint more important, not less. Governments with fragile majorities are constrained by arithmetic; Governments with overwhelming majorities must sometimes impose constraints upon themselves.
Sri Lanka should understand that danger better than most countries. Its modern political history has repeatedly involved constitutional rules being remodelled as Governments alternately strengthened and restrained the presidency, altered checks on political appointments and redesigned the relationship between elected power and independent institutions. The present Constitutional Council itself exists under the Twenty-First Amendment and plays a role in approving presidential recommendations for appointments including the chief justice, Supreme Court judges and Court of Appeal judges. A movement elected on the promise of changing Sri Lanka’s political culture should therefore be exceptionally wary of repeating one of that culture’s oldest habits: treating constitutional architecture as something that can be adjusted whenever the Government of the day believes its immediate objective is sufficiently worthy.
That is what makes this more than an argument about two additional years of judicial service. Democratic erosion does not always begin with a president ordering a judge from the bench or openly declaring war on the courts. Institutional boundaries can also weaken through technical measures, respectable administrative explanations and constitutional amendments whose proponents insist that nothing sinister is intended. The appropriate response is not to assume sinister intent. It is to design institutions so that intent matters as little as possible.
Dissanayake’s Government can still do that. It can raise Sri Lanka’s judicial retirement age after a transparent review. It can expand the courts, modernise case management, strengthen prosecution and forensic services and tackle the delays that deny Sri Lankans timely justice. What it should not establish casually is the principle that political majorities may alter how long judges already sitting in judgment over the state remain in office.
The issue is not whether a judge becomes incapable of delivering justice on his or her sixty-fifth birthday. Clearly, that is not the case. The issue is who gets to change the terms of judicial tenure after the judge has taken office, what safeguards govern that power and whether the change leaves citizens with reason to wonder about the relationship between those who govern and those who judge them.
Judicial independence requires judges to know that politicians cannot end their careers because they dislike their decisions. A democracy should be equally careful to ensure that sitting judges never have reason to owe additional years on the bench to those same politicians.