The local and global dynamics of Sri Lanka’s 22nd Amendment

The Sri Lankan government has proposed to introduce the 22nd Amendment to the Constitution focused on increasing the retirement age for Supreme Court and Court of Appeal judges. Coupled with parallel legislative adjustments to the Judicature Act of 1978 governing the functioning of lower-tier courts, the initiative has drawn sharp criticism from domestic legal bodies, opposition political parties, human rights activists and scrutiny from international organisations, most notably the United Nations Special Rapporteur on the Independence of Judges and Lawyers.

Locally however, much of the debate is lost in the noise of acrimony, name-calling and what can only be called ‘social media violence’ rather than becoming a sensible discourse of rational and courteous debate. A week ago, a simple tweet from me on my wariness over getting the UN involved in this matter and the UN’s general bias towards countries like ours literally went viral, castigating me as a supporter of the government. My public writing in support and often in opposition to government positions — as demanded by different cases and situations — had no impact whatsoever. This virulent noise has no place in democratic practice, which all these noisemakers nevertheless claim to protect. This essay, however, finds its genesis in that noise as a means of making sense of the politics of the 22nd Amendment for myself and for any sensible people who might want to ponder over its implications.

As far as my understanding goes as a citizen without a legal background, the present controversy touches on the core tension amongst practical administrative necessity as seen by the government, constitutional integrity as argued by many in the legal profession, human rights advocates and opposition politicians and the geopolitics of international human rights oversight exercised by entities such as the UN.

Under Article 107 of Sri Lanka’s 1978 Constitution, the mandatory retirement age for Supreme Court judges is 65 years, while Court of Appeal judges must retire at 63 years. The proposed 22nd constitutional amendment seeks to raise these limits by two years. That is, extending Supreme Court tenure to 67 years and Court of Appeal tenure to 65 years. It also proposes that the number of judges in the Court of Appeal be increased from 19 to 24. Further, in the case of the Chief Justice, it is specified that the retirement date would be 67 years or after completing six years in office, subject to whichever comes first. In parallel, the government has also proposed to amend the Judicature Act of 1978 with the aim of raising the retirement age of High Court judges to 63 years and for District Court judges and Magistrates to 62 years. In other words, the overall proposal is to increase the retirement age of judges throughout the judicial hierarchy by two years.

The government’s justifications for the proposed amendment rests on two general parameters. One is efficiency in judicial administration. The other is the retention of experienced judges for an additional period of two years. In this context, the government and its supporters in civil society do not perceive the proposal as a political maneouvre, but rather as an urgent administrative intervention that is essential to clear the backlog of cases throughout the judicial system. There is no doubt that the system is clearly overworked, understaffed and inefficient, and as a result, burdened with a serious backlog of cases.

Sri Lankan courts face an acute backlog exceeding 1.1 million pending cases according to some estimates. In this context, the government’s argument is that retaining seasoned judges is vital to maintain case disposal rates and prevent systemic paralysis. Extending judicial service is presented as a pragmatic mechanism to preserve institutional memory and combat capacity shortages.

Despite official justifications, most of which seem legitimate based on actual experience and existing data, some legal analysts, opposition figures, and civil society groups suspect unstated political objectives behind the timing and structure of the reform. For them, a primary concern is that the amendment is structured to apply retroactively or immediately to sitting judges rather than prospective future appointees. Critics suggest this directly benefits specific high-ranking figures ranging from the incumbent Chief Justice to senior appellate judges, who are nearing the mandatory retirement age while overseeing politically sensitive cases. On the other hand, one can argue it is precisely because some of them are presiding over politically sensitive cases, that they need to complete the relevant cases for which experience, familiarity as well as institutional memory are essential.

However, there is no doubt that extending the tenure during an active term creates the impression of a government benefit granted to sitting judges. Whether this is the intention or whether it becomes reality, appearances do matter. The main point opponents bring out is, this specific intervention risks compromising the perception of judicial neutrality in a situation where sitting judges might be perceived as indebted to political authority for extending their service. While this is indeed a possibility, it is nevertheless not a necessary outcome.

Formal and vocal opposition at the moment is led by the Bar Association of Sri Lanka, local political parties, and some constitutional experts. But this has not become a bread-and-butter issue yet in the country. That is, there is no way this issue will capture the public imagination in the manner more pressing bread and butter issues did in the aragalaya of 2022. Also, Sri Lanka’s fractured and delegitimised opposition sharing the same argumentative plain with an entity like the Bar Association of Sri Lanka does not help the latter when it comes to generating public sympathy for its cause however legitimate it might be.

To my understanding and reading between the lines amidst the deafening noise in the vocal opposition, the above concerns are based on several core arguments.

One has to do with the perceived erosion of the separation of powers. That is, changing the retirement age of sitting judges mid-tenure can compromise constitutional predictability and impartiality. Theoretically, fixed retirement ages exist in judicial systems globally to specifically protect judges from executive interference or influence. The second concern I can see but not clearly articulated by sceptics has to do with the possibilities of career stagnation. In other words, delaying emergent vacancies at the Supreme Court and Court of Appeal will create a bottleneck across the entire judicial hierarchy for some time, potentially demoralising junior judges in the High Courts and District Courts awaiting elevation. Finally, there is a concern over the long-term government failure to effectively utilise cadre expansion that has already been made possible which precedes the present government’s access to office. Prior constitutional changes (such as the 20th Amendment) already had expanded the numerical capacity of the superior courts. In this context, the argument is that the government should focus on filling existing vacancies with new appointees rather than altering the tenure of current judges. Purely as matters of principle, theory and potential impact on democratic governance, none of these concerns are spurious.

The UN Special Rapporteur’s Intervention

The 22nd Amendment is no longer merely a local political issue. On 7 August 2026, Margaret Satterthwaite, the UN Special Rapporteur on the Independence of Judges and Lawyers, addressed a five-page official communication to the Sri Lankan government based on ‘information’ her office had received and issued 7 requests for further information. Internationalisation of the politics surrounding the 22nd Amendment is also an integral part of Sri Lanka’s oppositional politics. While acknowledging that raising retirement ages can preserve expertise, her mandate emphasised that alterations to judicial tenure must adhere strictly to international standards. The Special Rapporteur highlights a number of primary concerns, which include the following: 1) She is concerned with the application of the proposed changes to sitting judges. That is, extending terms for sitting judges without clear, objective, and transparent transitional safeguards creates the risk or perception of political favor. 2) Second, she has raised concerns over the lack of broad consultations in introducing the proposal. In other words, the rapid introduction of the amendment without inclusive public and professional stakeholder consultation can threaten public trust in the rule of law. 3) Finally, she has also referred to a potential conflict of interest. That is sitting judges benefiting from the extension could face a structural conflict of interest if called upon to adjudicate constitutional challenges against the very amendment that extended their careers.

In a sense, these concerns are very similar to the concerns raised by the local opposition. But in real terms, is the 22nd Amendment unusual or inherently anti-democratic that it warrants a UN body to be this concerned when in general it is often not concerned beyond rhetoric in far worse situations? Increasing judicial retirement ages is a common trend globally, driven by demographic shifts and longer life expectancy. However, the mechanisms and contexts of various cases differ considerably. Through the Public Service Pensions and Judicial Offices Act 2022, the United Kingdom raised the mandatory retirement age for judicial office holders from 70 to 75. This included judges, magistrates, and coroners. The rationale for this provided by the UK government at the time cited improvements in life expectancy, the need to address post-pandemic court backlogs, and recruitment gaps across courts. Crucially, the change followed a comprehensive public consultation involving over 1,000 responses from legal professionals, the magistracy, and civic bodies.

An Australian state and a self-governing territory, namely, New South Wales and Northern Territory offer other recent examples. Australia does not have a single uniform retirement age for all state and federal judges. Under Section 72 of the Australian Constitution, federal judges have a fixed retirement age of 70. However, individual states have raised state-level judicial retirement ages at different times. In 2018, New South Wales enacted the Justice Legislation Amendment Act (No. 2) 2018, raising the mandatory retirement age for state judges and magistrates from 72 to 75. Similarly, in 2019, the Northern Territory also raised the retirement age for Supreme Court judges from 70 to 72 years under the Justice Legislation Amendment Act 2019.

But the UN Special Rapporteur did not issue formal communications or allegations to either the United Kingdom or the Australian state and territory regarding these specific tenure increases — with reason. For one thing, both the UK and Australian state and territorial governments conducted long-term, transparent public consultations with legal professional bodies prior to enacting legislation. That is, there was an appearance of reasonability. On the other hand, in these cases, the reforms were introduced as broad, systemic statutory updates rather than ad-hoc constitutional amendments enacted amid heightened domestic political tension or ongoing sensitive litigation involving sitting judges as is the case in Sri Lanka. Finally, in these cases, the policy changes were implemented via general legislative consensus rather than executive-driven constitutional maneuvers that directly benefited individual judges in real-time in the short term.

Further, in these cases, as far as I can see, there were no formal complaints to the UN from any entity in these countries given that there were adequate consultations. On the other hand, unlike the UK or Australia, bodies like the UN generally assume countries like Sri Lanka are inherently anti-democratic and therefore need oversight. It is in such a context that the UN Special Rapporteurs have routinely issued communications to other countries that have altered judicial terms. For example, Poland, Hungary, and Bolivia have received such communications when changes to judicial retirement ages or tenure were perceived as attempts by the governments concerned to alter the composition of courts or erode judicial independence. The Sri Lankan case too must be understood in such a situation. The government, on its part, has submitted a six-page response accompanied by two annexures to the Special Rapporteur’s communication on 21 August 2026. It responds fully to the queries raised by the Special Rapporteur rationally. However, if it closes the matter remains to be seen.

The problem in this context is that Sri Lanka has the added complication of having a resolution on its human rights situation in the United Nations Human Rights Council since 2012. The next formal update on this resolution is scheduled for the 63rd session of the UN Human Rights Council taking place from 7 September to 9 October 2026. My concern in internationalising a domestic issue such as the opposition to the 22nd Amendment is that it could feed into the longstanding resolution giving further ammunition to Sri Lanka sceptics and detractors both in and outside the country. This is an unnecessary burden for a country like Sri Lanka lacking the power wielded by mass human rights violators such as Israel and its sponsor the United States. It is also a needless distraction for a country that is trying to reinvent itself. In such a situation, dealing with the sins of the predecessors does not help, more so, when UN impartiality is known to be selective.

The controversy surrounding Sri Lanka’s proposed 22nd Amendment illustrates the delicate equilibrium required in constitutional governance and democratic practice. On a practical level, the government’s argument addresses an undeniable operational crisis. That is, as a means to deal with an overburdened legal system requiring the retention of experienced judicial personnel to deliver timely justice. Yet, on a principled level, constitutional safeguards exist precisely to ensure that procedural mechanisms are insulated from perceived political manipulation. In my mind, the government’s cardinal mistake was not to have wide-ranging consultations and information sharing programmes before the proposal became a contentious issue. This is simply good PR and common sense. Consultations and information sharing do not mean wholesale adherence to opposition positions. It simply means transparency, accepting what is reasonable, not accepting what makes no sense and offering at least a semblance of fair play. This would have also ensured that the government did not need to be overly defensive as it is now. In any case, given its overwhelming majority in parliament, the government does not need any support from the opposition to pass legislation. But it can certainly afford to be politically intelligent, sophisticated and mature in its public demeanor.

When a government alters the terms of service for sitting judges, the primary challenge is rarely the increased age limit. Rather, it is the need to preserve public trust in judicial neutrality. As comparative examples demonstrate, nations can adjust judicial tenure legally and successfully when changes are accompanied by broad professional consensus, prospective application, and transparent legislative processes.

Sri Lanka’s challenge lies in balancing the immediate demands of judicial efficiency against the enduring requirement that constitutional reforms must satisfy both domestic legitimacy and established international standards of judicial independence, particularly in a situation the latter is inherently oppositional to nations who do not have a veto or global political wherewithal to withstand pressure.