A Strategic Silence: The BASL's Failure to Articulate a Coherent Legal Argument Against Judicial Tenure Extension
The Sound of Silence
The Bar Association of Sri Lanka (BASL) has positioned itself as the foremost guardian of judicial independence in the ongoing debate over extending the retirement age of superior court judges. At special general meetings and through formal correspondence, the BASL has unanimously opposed the government's proposal, warning that the move "could undermine judicial independence and public confidence in the courts" .
Yet beneath the thunderous rhetoric lies a troubling silence. For all its protestations, the BASL has conspicuously failed to mount a rigorous legal argument against the extension of judicial service. Instead, it has relied on political assertion, institutional posturing, and emotive appeals—all while neglecting the constitutional and jurisprudential foundations that could give its opposition genuine legal weight.
This article examines the BASL's strategic silence and argues that its failure to articulate a substantive legal case undermines both its credibility and the very principle of judicial independence it purports to defend.
The Constitutional Framework: What the BASL Ignores
The BASL's primary objection rests on the assertion that the government has proceeded "without receiving and reviewing prior observations and representations from BASL and other legal stakeholders" . While procedural consultation is a legitimate concern, it is not a constitutional argument.
Article 107(5) of the Constitution currently fixes the retirement age of Supreme Court judges at 65 years and Court of Appeal judges at 63 years . The government has made clear that any alteration "would require a Constitutional Amendment approved by Parliament" . The Cabinet has already approved drafting the necessary constitutional and legislative amendments .
Notably, the BASL has not challenged the constitutionality of the amendment process itself. It has not argued that Parliament lacks the authority to amend Article 107(5). It has not identified any constitutional provision that would be violated by extending judicial tenure. This omission is striking.
Instead, the BASL has argued that the amendment is "not necessary" because the number of judges was increased through the 20th Amendment in 2020 . But necessity is a question of policy, not constitutional law. A policy disagreement is not a legal argument.
The Vacancies Argument: A Red Herring
The BASL has repeatedly claimed that the government should "fill the existing vacancies in the Superior Courts" before considering any extension of judicial tenure . It has highlighted that "there are currently eight vacancies in the Supreme Court and Court of Appeal" .
This is a political argument, not a legal one. The BASL has not cited a single constitutional provision requiring vacancies to be filled before any other judicial reform can proceed. It has not identified any legal principle that makes the existence of vacancies a bar to legislative action.
In fact, the government's argument that retaining experienced judges would help address the "backlog of more than 1.1 million cases" is at least as compelling on policy grounds. Yet the BASL has dismissed the government's rationale as "completely a lie" without offering a legal counterargument .
The BASL's failure to distinguish between legal and political objections is a fundamental weakness. If the BASL cannot point to a constitutional violation, its opposition remains a matter of policy preference—entitled to respect but not legal deference.
International Jurisprudence: What the BASL Could Have Argued
The BASL could have drawn on well-established international jurisprudence to construct a legal argument. For example, the OSCE/ODIHR has stated that "discretionary extensions of service for judges at the retiring age are generally viewed as undesirable" and that "excluding the possibility of extension/reappointment has been considered a guarantee against politicization of the judiciary" .
This principle could have been deployed to argue that extension mechanisms may "subject individual judges to improper influence, pressure, threat or fear of interference" from authorities intervening in the extension process . The BASL could have argued that allowing extensions creates an actual or perceived conflict of interest for judges in litigation involving government bodies.
The European Court of Human Rights has likewise held that cases involving appointment mechanisms dominated by political actors raise "structural deficiency" concerns incompatible with the principle of judicial independence . The Venice Commission has consistently warned against "piecemeal Constitutional Amendments affecting the Judiciary" without broad public consultation .
The BASL has not cited any of this jurisprudence in its public statements. It has made political appeals—referencing the "dangerous precedent" of the Shirani Bandaranayake impeachment —rather than legal arguments grounded in constitutional principle.
The Rule of Law vs. Political Posturing
The BASL's response reveals a deeper problem: the conflation of institutional self-interest with constitutional principle. The Judicial Service Association has rightly pointed out that extending the tenure of the uppermost tier of judges "effectively freezes the promotion pipeline for the entire judicial career structure" . This is a legitimate concern for judicial officers—but it is not a constitutional argument.
The BASL has complained that the government "has not acted honestly" and that the proposal was approved "secretly without any broader discussion in society" . These are criticisms of process, not challenges to legal authority. The BASL has not argued that the government lacks the constitutional power to proceed—only that it should not exercise that power in this way.
If the BASL genuinely believes that the proposed amendment violates the Constitution, it should say so—and articulate the basis for that claim. If it cannot, its opposition is reduced to political commentary, indistinguishable from the opposition's broader criticism of government policy.
The Political Deal Accusation: A Distraction
The BASL has become embroiled in a political controversy, with NPP MP Asitha Niroshana alleging that BASL President Rajiv Amarasuriya entered into a "political deal" with Opposition Leader Sajith Premadasa . The BASL and the Free Lawyers Association have challenged MP Niroshana to repeat his allegations outside Parliament .
This is precisely the kind of political entanglement that the BASL should avoid. By entering the political arena, the BASL undermines its claim to be a disinterested guardian of judicial independence. Its legal arguments lose force when they appear to serve a political agenda.
The BASL's credibility as a legal institution depends on its ability to articulate legal arguments grounded in principle, not political convenience. In this case, it has failed to meet that standard.
The Cost of Silence
The BASL's opposition to the judicial tenure extension may ultimately be vindicated—the government may withdraw the proposal, or Parliament may reject the constitutional amendment. But that victory, if achieved, will rest on political calculation, not legal principle.
The BASL has had the opportunity to build a legal case grounded in constitutional interpretation, international jurisprudence, and the fundamental principles of judicial independence. It has chosen instead to rely on political rhetoric, procedural objections, and institutional self-interest.
This strategic silence is a disservice to the BASL's members, to the judiciary, and to the rule of law. When the legal profession's foremost body cannot articulate a legal argument, it has failed in its primary duty.
The BASL must do better. Judicial independence deserves more than political posturing—it deserves a legal defence that commands respect not through the volume of its protest but through the rigour of its reasoning. Until the BASL provides that defence, its opposition to the judicial tenure extension remains sound and fury,