75% of the Public Supports Extending Judges’ Retirement Age: Why Should the People’s View Be Dismissed?
The debate surrounding the proposed 22nd Amendment to the Constitution has increasingly become a contest between two very different perspectives: the concerns expressed by sections of the legal profession and the practical demands of millions of ordinary Sri Lankans who have been waiting years, and sometimes decades, for justice.
Former Bar Association of Sri Lanka President President’s Counsel Saliya Peiris has strongly criticised the proposed extension of the retirement age of judges, arguing that it could undermine judicial independence and would not necessarily accelerate the disposal of cases.
Those concerns deserve to be heard. But they should not automatically become the final word.
There is another important question that must be asked: what does the public think?
If public opinion surveys showing approximately 75% support for extending the retirement age of judges accurately reflect the public mood, then the views of ordinary citizens cannot simply be dismissed as irrelevant to the debate over judicial reform.
The people waiting for justice
Sri Lanka's judicial crisis is not an abstract constitutional argument.
It is a daily reality for people waiting for criminal trials, land disputes, commercial cases, family disputes, corruption cases and fundamental-rights cases to conclude.
Recent reporting based on Ministry of Justice figures put the number of unresolved cases at more than 1.1 million. A substantial majority are in the lower courts, including Magistrates' Courts and District Courts.
Even more seriously, Supreme Court Justice Yasantha Kodagoda has publicly highlighted the extraordinary length of criminal proceedings, stating that a complete criminal case cycle can take an average of approximately 10 years and two months.
Therefore, when a citizen asks for more judges, greater judicial capacity and faster disposal of cases, that citizen is not attacking judicial independence.
That citizen is asking for justice.
Is extending retirement age really irrelevant to the backlog?
Mr. Peiris argues that many cases involving alleged corruption and criminal wrongdoing are heard in Magistrates' Courts and High Courts, and therefore extending the retirement age of Supreme Court and Court of Appeal judges cannot directly solve those cases.
There is some validity in distinguishing between the different levels of the judicial system.
But that does not establish that extending judicial retirement ages is useless.
The proposed reform is not confined to the Supreme Court and Court of Appeal.
The Government's proposal also involves corresponding changes affecting High Court judges, District Judges and Magistrates. The proposed constitutional amendment would raise the retirement age of Supreme Court judges to 67 and Court of Appeal judges to 65, while the accompanying changes to the Judicature Act would raise the retirement ages of High Court judges to 63 and District Judges and Magistrates to 62.
Furthermore, the proposed constitutional amendment would increase the maximum number of Court of Appeal judges from 19 to 24.
Consequently, portraying the reform simply as a mechanism for keeping a handful of senior judges in office does not adequately describe the proposal.
Judicial independence and judicial capacity are not opposites
The most important question is whether extending a judge's retirement age automatically compromises judicial independence.
It does not necessarily follow.
Judicial independence depends upon safeguards governing appointment, tenure, remuneration, removal, judicial ethics and the constitutional separation of powers.
A general retirement age applicable to judges is itself a statutory or constitutional policy choice. Changing that age does not automatically mean that judges become politically controlled.
Indeed, other democratic countries have adopted significantly higher judicial retirement ages.
The United Kingdom, for example, increased the mandatory retirement age for judges, magistrates and coroners from 70 to 75. The UK Government said the policy was intended partly to retain the expertise of experienced judicial office-holders.
That does not mean Sri Lanka must copy Britain. But it demonstrates that a higher judicial retirement age is not, by definition, incompatible with judicial independence.
The real test should therefore be whether the Sri Lankan proposal contains adequate safeguards against political interference.
What about the argument for a referendum?
Mr. Peiris has also argued that a referendum is essential because the proposal affects the sovereignty of the people.
This is a serious constitutional question, but it should not be converted into a political slogan.
Sri Lanka's Constitution specifically identifies the provisions requiring approval by referendum. Article 83 sets out the categories of constitutional amendments that require both a two-thirds parliamentary majority and approval by the People at a referendum.
Therefore, whether a particular amendment requires a referendum is ultimately a constitutional and legal question—not simply a matter of whether a prominent lawyer believes that it ought to be subjected to one.
The Supreme Court has the constitutional role of determining the relevant requirements concerning Bills before Parliament.
The public should therefore be given the facts, the constitutional arguments and the legal determination—not simply told that the amendment is inherently unacceptable.
Why Is a Referendum Suddenly Being Demanded?
Another question being raised in the public debate is why the Bar Association of Sri Lanka (BASL) is insisting that the proposed 22nd Amendment must be subjected to a referendum when previous major constitutional amendments have been enacted without a referendum.
The experience of the 19th Amendment in 2015 is particularly relevant. The amendment reduced the presidential term from six years to five years and introduced a number of significant constitutional changes. Despite the scale and political importance of those changes, the amendment was ultimately passed by Parliament without being subjected to a national referendum, following the Supreme Court's determination on the constitutional requirements.
Sri Lanka has also enacted numerous constitutional amendments without referendums where the Supreme Court determined that the amendments did not fall within the provisions of Article 83 requiring approval by the People.
This raises a legitimate question for the BASL: Why should the proposed 22nd Amendment automatically be treated differently?
The constitutional test should be applied consistently.
If the BASL believes that the proposed amendment requires a referendum, it should clearly identify the specific constitutional provision that triggers that requirement and explain the legal basis for its position. It should not simply argue that because judicial independence is involved, a referendum is automatically necessary.
There is, of course, nothing wrong with asking the people to decide. In fact, if a referendum is constitutionally required, there should be no hesitation about allowing the people to make that decision.
The NPP Government has also indicated that it is prepared to face a referendum if the Supreme Court determines that one is constitutionally necessary.
That position fundamentally changes the nature of the political argument.
The Government is not saying that it wants to avoid the people.
Its position is that the Constitution should determine whether a referendum is required.
If the Supreme Court directs that the proposed 22nd Amendment requires both a two-thirds majority in Parliament and approval at a referendum, then the Government should proceed accordingly and place the matter before the people.
Ultimately, the issue should not become a confrontation between the Government and the BASL over who has the louder voice.
The Supreme Court is the constitutional referee.
If the Court determines that the amendment requires a referendum, the people should decide.
If the Court determines that parliamentary approval is constitutionally sufficient, then that constitutional determination should also be respected.
That is how a constitutional democracy is supposed to function: not through political pressure, but through the Constitution, judicial review and, where constitutionally required, the direct voice of the people.
The 75% question
This brings the debate back to ordinary citizens.
If approximately 75% of the public support extending the retirement age of judges, the political and legal establishment should explain why that public preference should be disregarded.
The public has experienced the consequences of judicial delay.
A person whose case remains unresolved for 10, 15 or 20 years does not experience the judiciary as an abstract constitutional institution. That person experiences it through postponed hearings, repeated appearances, legal expenses, witnesses becoming unavailable and uncertainty continuing year after year.
For such citizens, the question is straightforward:
Why should an experienced and properly performing judge be required to retire simply because he or she reaches an arbitrary age, particularly when the judicial system is struggling with an enormous backlog?
That does not mean every judge should automatically remain in office.
Performance, integrity, competence, health, ethics and independence must remain essential.
But age alone should not necessarily deprive the country of experienced judicial expertise.
Reform should mean more than retirement age
At the same time, extending retirement ages cannot be presented as a magic solution to the judicial crisis.
The Government itself has described the retirement-age proposal as one component of a broader judicial reform programme. Justice Minister Harshana Nanayakkara has pointed to problems involving investigations, the Government Analyst's Department, the Attorney General's Department, staffing and the shortage of judges.
That is the correct approach.
Sri Lanka needs more judges, more courtrooms, better case management, stronger digital systems, faster forensic and Government Analyst services, adequate prosecution resources and mechanisms to prevent unnecessary postponements.
The retirement-age reform should therefore be judged as one component of a larger judicial-capacity programme, rather than being portrayed as the entire solution.
Let the courts decide the constitutional question—and let the people be heard
The strongest argument against the current debate is not that lawyers should remain silent.
They should not.
Lawyers have every right—and indeed a professional responsibility—to scrutinise legislation affecting the judiciary.
But the opposite view must also be respected.
A lawyer's opinion is not automatically more important than the experience of the ordinary citizen who has waited years for justice.
If 75% of the public genuinely supports extending the retirement age, that position deserves serious consideration. If the figure is disputed, then conduct a transparent, professionally designed public opinion survey and publish the methodology and results.
What Sri Lanka needs is not a confrontation between lawyers and the public.
It needs a judicial system capable of delivering justice efficiently while preserving judicial independence.
The proposed 22nd Amendment should therefore be examined on its actual text, constitutional safeguards, impact on judicial capacity and consequences for ordinary litigants.
The central question should not be whether Saliya Peiris supports it or whether the Government supports it.
The central question should be:
Can Sri Lanka afford to lose experienced judges while more than a million cases remain unresolved—and can the country afford to preserve a system in which justice takes a decade or more to arrive?
If the answer to the first question is no, then extending judicial retirement ages deserves to be considered seriously.
And if approximately 75% of the public supports that approach, their voice deserves to be heard just as loudly as the voices of the legal establishment.