BASL’s Arguments Exposed as Political Tosh
The Bar Association of Sri Lanka (BASL) has mounted a vigorous campaign against the government’s proposal to raise the retirement age of superior court judges. But when stripped of its self-righteous indignation, the BASL’s position is revealed as constitutionally inconsistent, historically hypocritical, and ultimately dismissive of the very people the justice system exists to serve: the Sri Lankan public.
The Public Interest Argument That BASL Forgot
BASL insists that extending judicial tenure from 65 to 67 for Supreme Court judges and 63 to 65 for Court of Appeal judges threatens judicial independence and public confidence . Yet the organisation appears curiously unconcerned about the actual confidence crisis gripping Sri Lanka’s courts: the backlog of more than 1.13 million pending cases, the prison system holding over 41,000 inmates against a designed capacity of roughly 10,500, and remand prisoners languishing for over a year and a half merely to obtain a Government Analyst’s report .
BASL’s letter campaign demanding that the amendment be scrapped entirely is notable for its failure to engage with these realities. If retaining experienced judges helps clear the appellate backlog, which direct election and career ambition of lawyers who hope for judicial promotions, should that not be part of the calculus?
Historical Hypocrisy on Display
The BASL cannot claim constitutional purity while its own recent history reveals a flexible approach to amendments. In 2022, BASL expressly accepted that exceptional transitional provisions might be justified by the exigency of crisis, while warning that they should not become precedent . The organisation supported the 19th Amendment, recognising that constitutional arrangements can contain mixed motives .
Yet when a government elected on an anti-corruption mandate proposes a general, uniform retirement age increase across all judicial tiers, BASL suddenly demands absolute constitutional rigidity. BASL’s own formal proposals during the 2022 economic and political crisis acknowledged that “exceptional circumstances may justify transitional measures” . Why is the present context – with over a million cases pending and a government actively pursuing corruption cases against powerful interests – any less exceptional?
The Careful Distinction BASL Refuses to Make
BASL blurs the critical distinction between executive patronage and general institutional reform. A constitutional amendment applying uniformly to all Supreme Court and Court of Appeal judges is fundamentally different from a discretionary extension granted by the President to favoured individuals. The 20th Amendment – which BASL rightly opposed – increased judicial numbers at the executive’s discretion. This proposal establishes a fixed, impersonal rule.
International experience is instructive. The United Kingdom raised judicial retirement age from 70 to 75 in 2022, applying to serving judges . Australia sets retirement at 70, Canada at 75. These reforms did not destroy judicial independence because they were general rules. Sri Lanka’s proposal, extending tenure across all judicial tiers from magistrates to the Supreme Court, follows this pattern .
Misreading the Judicial Conflict
The concern that benefiting judges might rule on challenges to the amendment is a classic example of the doctrine of necessity. As one commentator notes, “Constitutional law routinely handles this through the established Doctrine of Necessity. Institutional governance cannot be paralysed simply because a law of general application affects the bench as a whole” . The alternative – a two-tier bench with some judges serving under old terms and others under new – would create administrative chaos and undermine collegiality.
The Missing Proportionality Test
BASL’s categorical rejection has not undertaken the proportionality analysis demanded by constitutional principle. Is there a legitimate objective – experience, continuity, addressing the backlog? Is extending service rationally connected to that objective – retaining judges at the peak of their competence? Are there less constitutionally risky alternatives available – yes, but the government has already expanded judicial numbers through the 20th Amendment without resolving the crisis .
The benefits of retaining experienced judges dealing with complex corruption and public law cases demonstrably outweigh the speculative impairment of confidence .
The Real Motive Behind BASL’s Opposition
The BASL is not a disinterested guardian of constitutional virtue. Its leadership includes senior lawyers who have built careers arguing before the very judges whose tenure would be extended. A principal of judicial succession is that younger lawyers advance through promotion – and a prolonged tenure delays that advancement. BASL has obvious professional and pecuniary interests in maintaining judicial turnover.
The government’s anti-corruption investigations against powerful interests pose a direct threat to networks that may include elements of the legal profession. As one analysis notes, “It would be naïve to assume that all actors within the legal ecosystem welcome the process” of accountability .
The People’s Justice System
Ultimately, this debate has been captured almost entirely by lawyers and constitutional experts. The voices of ordinary Sri Lankans – the mother whose son sits on remand, the family waiting years for a land case, the worker who has watched impunity prevail – have been silenced.
BASL’s categorical opposition to a two-year extension in retirement age, when over a million cases await resolution and remand prisoners rot in overcrowded cells, is not constitutional guardianship. It is professional self-interest masquerading as principle. The test of a genuine institutional response is not whether it treats suspicion as dispositive, but whether it combines vigilance with a fair assessment of public policy merit. By this test, BASL has failed the people of Sri Lanka.