Judicial Independence: Protecting the Principle Without Politicising It
Over the past several weeks, a section of the legal profession and opposition politicians has mounted a campaign against a proposed constitutional amendment concerning the retirement age of judges of the Supreme Court and Court of Appeal. The central argument advanced by its opponents is that extending the retirement age would threaten the independence of the judiciary.
Judicial independence is unquestionably a fundamental principle of any democratic constitutional order. But precisely because it is so important, the term should not be invoked as a political slogan without explaining what it means, what it protects and, most importantly, how a particular reform would undermine it.
The government has presented the proposed change as one element of a broader programme of judicial reform. That programme includes extending the retirement age across the judiciary to retain experienced judges, increasing the number of Court of Appeal judges to facilitate mobile courts and improve access to appellate justice outside Colombo, and expanding the High Court to address delays and case backlogs.
These proposals form part of a wider effort to modernise the administration of justice, including through digitalisation and measures intended to make courts more accessible to ordinary citizens.
Yet much of the public debate has concentrated almost exclusively on the retirement age of judges of the higher courts, and particularly on the possible effect on the tenure of the Chief Justice. Some critics have suggested that the proposal is motivated by a desire to keep a particular Chief Justice in office and have portrayed the amendment as evidence of political interference in the judiciary.
Such claims deserve scrutiny. The question is not whether judicial independence is important. It plainly is. The question is whether extending the retirement age, in itself, constitutes an assault on that independence.
What Does Judicial Independence Actually Mean?
For the general public, “judicial independence” can sometimes appear to be an abstract legal expression. In reality, its purpose is straightforward: judges must be able to decide cases impartially, according to law and evidence, without pressure or intimidation from politicians, governments, powerful individuals or other institutions.
The historical foundations of the principle are closely associated with the Act of Settlement of 1701 in England, which strengthened judicial security of tenure and protected judicial remuneration. The underlying logic remains compelling. A judge who can be arbitrarily removed or financially punished by the political authorities cannot be expected to exercise independent judgment against those authorities.
Security of tenure is therefore an essential element of judicial independence. So too is protection against interference with the judicial functions of a court.
But there is an important distinction between protecting a judge’s tenure and permanently fixing the terms of that tenure so that they can never be changed.
Where a constitutional provision establishes a retirement age, its purpose is to guarantee that a serving judge cannot be compelled to retire before reaching that age. If the retirement age were suddenly reduced for judges already holding office, there would be a legitimate argument that such a measure could amount to forced retirement and could threaten judicial security of tenure.
An extension is fundamentally different.
If the retirement age is increased, a serving judge does not lose tenure, salary or judicial authority. Rather, the period during which that judge is entitled to remain in office is potentially extended. It is therefore difficult to argue that an extension, by itself, creates the kind of political pressure against which the principle of judicial independence is designed to protect.
That does not mean every constitutional amendment affecting judges is automatically consistent with judicial independence. The circumstances, purpose and practical consequences of any amendment must be examined. But the mere fact that a retirement age appears in constitutional provisions dealing with the judiciary does not establish that changing the age necessarily constitutes interference.
Separation of Powers Does Not Mean Separation of Policy
The second important question concerns the separation of powers.
The Constitution allocates legislative, executive and judicial power among different institutions. Judicial power must be exercised by the courts, while Parliament exercises legislative power and the executive exercises executive power.
This separation is fundamental to preventing the concentration of power.
But separation of powers does not mean that Parliament is prohibited from making laws or policies concerning the administration of the justice system.
Indeed, Parliament necessarily has a role in establishing courts and determining the institutional framework within which the judicial power of the people is exercised. Decisions concerning the number of judges, the creation of courts, court infrastructure, remuneration and administrative arrangements are not themselves exercises of judicial power.
The distinction is therefore crucial.
Parliament cannot tell a judge how to decide a particular case. A minister cannot order a court to convict or acquit an accused person. The executive cannot lawfully dictate the outcome of litigation.
But Parliament can decide that more judges are needed to reduce delays. It can establish additional courts. It can provide resources for the judiciary. It can modernise court procedures and introduce measures designed to improve access to justice.
Those are matters of public policy and institutional administration, not the exercise of judicial power.
The Real Test Should Be Interference, Not Suspicion
A serious debate about judicial independence should therefore focus on evidence of interference rather than assumptions about political motives.
Sri Lanka has, historically, experienced concerns about political influence over judicial appointments. The country has seen controversial appointments and allegations that political considerations were sometimes placed above seniority or merit.
That history makes vigilance necessary.
But vigilance should not become a presumption that every reform affecting the judiciary is an attack on judicial independence.
The present government has argued that its approach to judicial appointments has been based on seniority. The two Chief Justices appointed during President Anura Kumara Dissanayake’s administration, it says, were elevated on that basis rather than because of personal or political proximity to the President.
Whether that policy is consistently maintained should be judged by the evidence and by future appointments. Institutional safeguards should be strengthened wherever necessary. But allegations of political capture should not substitute for evidence.
Independence Belongs to the People
Ultimately, judicial independence is not a privilege created for lawyers or judges. It is a protection belonging to the public.
The ordinary citizen who goes to court in search of justice needs to know that the judge hearing the case is free from political pressure. A person challenging the government needs confidence that the court can act independently. A citizen facing a powerful private institution needs assurance that the law will be applied impartially.
That is why judicial independence must be defended seriously.
But defending it also requires responsible language.
When the phrase is repeatedly invoked without identifying the specific constitutional principle being violated, the mechanism of interference or the evidence demonstrating political pressure, it risks becoming detached from its actual meaning. A concept designed to protect the public can then become a political instrument used to attack individuals or obstruct legitimate institutional reform.
The debate over judicial reform should therefore move beyond slogans.
The central questions are simple: Does the proposed amendment threaten the security of judges? Does it permit the executive or legislature to interfere with judicial decisions? Does it compromise the ability of judges to act impartially? Or does it simply alter an institutional rule as part of a broader effort to address delays and improve access to justice?
Those questions deserve evidence-based answers.
Judicial independence must be protected from political interference. At the same time, the government and Parliament must retain their constitutional authority to formulate legitimate policies for the administration of justice.
Both principles can and must coexist.
A judiciary that is genuinely independent should not fear legitimate institutional reform. And a government genuinely committed to the rule of law should welcome rigorous scrutiny of any reform that affects the courts.
The objective should ultimately be the same for all sides: a judiciary that is independent, accessible, efficient and capable of delivering justice to the people without fear or favour.
Only by preserving that balance can “judicial independence” remain what it was intended to be—not a political slogan, but a meaningful safeguard of the people’s sovereignty and their right to justice.
