BASL Wrong to Question the Independence of the Judiciary in Relation to the Extending Judges' Retirement Age
By Legal Correspondent
The recent stance taken by the Bar Association of Sri Lanka (BASL) regarding the proposed extension of the retirement age for judges demands a rigorous response. While the BASL has historically played a crucial role in safeguarding the rule of law, its current opposition to this legislative amendment appears to be a fundamental misreading of constitutional dynamics. The Chairperson’s assertion that this extension constitutes an attack on judicial independence is not only flawed but misrepresents the very nature of judicial tenure and constitutional governance.
The argument presented by the BASL leadership rests on the presumption that altering the age of retirement interferes with the judiciary's ability to function without external pressure. However, this perspective conflates structural independence with personal tenure. Judicial independence is the cornerstone of our democracy, ensuring that judges adjudicate without fear of reprisal. Yet, independence is primarily guaranteed by the security of tenure during service, the prohibition of salary reduction, and the immunity from civil suits regarding judicial acts—not by the specific age at which a judge must retire.
The Purpose of the Amendment is Resource Retention, Not Executive Control
The BASL Chairperson has suggested that this extension is a move to pack the judiciary with compliant judges. This is a serious allegation that lacks substantial evidence. The proposed amendment appears to be a practical measure aimed at retaining highly experienced and skilled judicial officers. In an era where the judiciary faces a backlog of cases and complex litigation, losing seasoned judges at the age of 63—an age where many professionals are at the peak of their intellectual capacity—is a significant drain on state resources.
By extending the retirement age, the state is simply aligning the judiciary with other apex professions where retirement ages are often higher. It is a policy decision made by the executive in consultation with the legislature, which is a standard function of governance. If we accept the BASL’s logic that any legislative action regarding the judiciary is an attack on independence, then we would have to conclude that the judiciary exists in a vacuum, untouched by the democratic processes that govern the rest of the country.
The BASL’s Position Risks Politicizing the Judiciary
Ironically, in its attempt to protect the judiciary, the BASL is in danger of politicizing it. By framing a simple retirement extension as a "constitutional crisis," the BASL creates a narrative that the judiciary is perpetually under siege. This narrative undermines public confidence more than the amendment itself ever could. The public expects the judiciary to act as an impartial arbiter. The institution's legitimacy is derived from its rulings, not from the age of its members.
It is also worth noting that the BASL does not represent the entire legal fraternity. There are many legal professionals and academics who view this extension as a pragmatic step. The Chairperson’s strong rhetoric may reflect a generational divide or a political bias rather than a legal consensus. The judiciary is robust enough to withstand a change in retirement age; it is not so fragile that a few additional years of service for a judge will corrupt its foundation.
Comparing with Global Standards
Globally, there is no uniform standard for judicial retirement that guarantees independence. While some jurisdictions have fixed ages, others allow judges to serve well into their late 70s. In many Commonwealth countries, the retirement age for superior court judges is set at 70 or 75. The argument that a judge becomes "dependent" upon the executive simply because they were appointed at a younger age and serve longer is logically weak. Judges are appointed based on merit and integrity. The extension of service does not alter the oath they take to uphold the Constitution.
The BASL must trust the process. The extension of the retirement age does not give the executive the power to terminate judges at will; it simply allows them to work longer. The safeguards of judicial independence—removal only by an address of Parliament for proved misbehavior or incapacity—remain fully intact.
The BASL is wrong to question the independence of the Judiciary in relation to this specific legislation. By opposing the extension of the retirement age, the BASL is fighting a phantom menace. The Executive has the right to propose policy, and the Legislature has the right to debate and pass it. If the judiciary wishes to contest the constitutionality of the amendment, it has the power to do so through judicial review. However, to suggest that this amendment is a systemic threat to the independence of the judiciary is a gross exaggeration.
We should welcome the retention of experienced judges rather than view it as a conspiracy. The independence of the judiciary is not endangered by the length of a judge’s service, but by external threats to the rule of law—threats that the BASL should focus on rather than engaging in alarmism over a routine retirement age adjustment. The legal community should stand firm in its defense of the Constitution, but it must also recognize the legitimate role of the executive and legislature in managing the administration of justice.