A public discussion on the 22nd Amendment to the Constitution and the independence of the judiciary was held at the Capri Club in Colombo on the 21st. This article is based on the views expressed by President’s Counsel Saliya Peiris, former President of the Bar Association of Sri Lanka.
The event explored several key issues arising from the 22nd Amendment proposed by the National People’s Power (NPP) Government, particularly its implications for judicial independence, the administration of justice, and the sovereignty of the people.
The discussion featured a panel of legal experts, including President’s Counsel Saliya Peiris, Dr. Kumaravadivel Guruparan, former Head of the Department of Law at the University of Jaffna, and Attorney-at-Law Nuwan Bopage. The session was moderated by veteran Attorney-at-Law Sudarshana Gunawardena.
Is This a Genuine Solution or a Cover for Another Purpose?
The backlog of court cases remains one of the most pressing challenges facing Sri Lanka’s justice system. While few would dispute the need for reform, an important question arises: is extending the retirement age of judges the most effective way to address the problem, or does it merely avoid confronting the deeper structural issues within the system?
Justice delayed is justice denied. Therefore, any serious effort to reduce case delays deserves consideration. However, the method proposed by the government raises critical questions about whether it is capable of addressing the root causes of the problem.
Is it reasonable to believe that the backlog can be significantly reduced simply by retaining judges for a longer period without first identifying where the delays actually occur?
Where Does the Backlog Exist?
Any discussion about reducing case delays must begin by identifying where the backlog is concentrated.
The largest volume of pending cases in Sri Lanka is found not in the Supreme Court or the Court of Appeal, but in the Magistrates’ Courts and District Courts. If the primary problem exists at the lower court level, how can extending the retirement age of judges in the higher courts substantially reduce the overall backlog?
Attempting to solve the problem in this manner risks treating a symptom while ignoring the underlying cause.
The Changing Nature of the Proposal
Another issue concerns the evolution of the proposal itself.
The initial discussion centred on increasing the retirement age of judges in the superior courts. Subsequently, proposals emerged to extend the retirement age of all judges.
This shift naturally prompts further questions. If professional associations representing Magistrates and District Court judges themselves do not see a need for such an extension, what exactly justifies the amendment?
The challenge of case delays cannot be solved simply by lengthening judicial careers, particularly when many judges can continue serving for another decade or more under the existing framework.
The Real Causes of Delay
The judicial process faces numerous bottlenecks before a case even reaches trial.
Delays in Government Analyst Reports
One of the most significant obstacles is the lengthy delay in obtaining reports from the Government Analyst’s Department.
Scientific and forensic reports are often essential for criminal prosecutions. When these reports take months or years to complete, entire proceedings can be stalled. Improving the department’s capacity, staffing, technology, and procedures would likely have a far greater impact on reducing delays than extending judicial service periods.
Human Resource Shortages in the Attorney General’s Department
Another major challenge is the shortage of personnel within the Attorney General’s Department.
A substantial number of approved positions remain vacant. Moreover, when government lawyers leave the service, replacements are not always recruited promptly. The resulting shortage directly affects the state’s ability to prosecute cases efficiently.
In such circumstances, can the justice system truly become faster simply by retaining judges for a few additional years?
Strengthening one component of the judicial system while neglecting others is unlikely to produce meaningful reform.
Recruitment Challenges in the Judiciary
The recruitment of magistrates illustrates another structural weakness.
If the intention was to recruit 50 magistrates but only 33 appointments were ultimately made, attention should be focused on understanding why this shortfall occurred.
If the system struggles to recruit and retain the judicial officers it needs, extending retirement ages cannot substitute for addressing those institutional shortcomings.
The real question should not simply be: “How long can judges remain in service?”
Rather, it should be: “Why are we unable to recruit and maintain the number of judges and court staff required to administer justice efficiently?”
Weaknesses in Police Investigations
The effectiveness of a criminal case is determined long before it enters a courtroom.
Investigations form the foundation of the criminal justice process. Society may broadly agree that offenders should be held accountable. However, justice demands that prosecutions be based on proper investigations, credible evidence, and fair trials.
Accordingly, judicial reform must also address deficiencies within the police investigation process, including training, technology, forensic capabilities, and evidence-gathering procedures.
Lessons from Other Jurisdictions
Countries around the world have adopted a variety of strategies to reduce court backlogs.
These include encouraging guilty pleas in appropriate cases, introducing plea bargaining mechanisms where legally permissible, resolving procedural issues at the pre-trial stage, and streamlining investigations.
Sri Lanka should carefully examine reforms suited to its own legal traditions and institutional realities, rather than relying on isolated measures or importing foreign models without proper planning and adaptation.
Some Solutions Require Only Legislative Amendments
Reducing delays does not necessarily require a constitutional amendment.
In many instances, targeted amendments to existing laws could provide immediate relief. For example, proposals have been made to simplify lengthy divorce proceedings and reduce unnecessary litigation.
If draft legislation for such reforms already exists, it is fair to ask why these measures have not been prioritised. Such reforms could reduce caseloads while delivering practical benefits to thousands of citizens who have spent years navigating prolonged legal processes.
Questions About Timing
The timing of the retirement-age proposal also warrants scrutiny.
Particularly where a Chief Justice is due to retire in the near future, the government should explain why the amendment is being introduced at this specific moment.
This is not about individuals. Rather, it concerns the relationship between institutional decisions and their practical consequences.
A strong judicial system should not depend upon the tenure of any single individual. If institutional stability becomes dependent on extending the service of a particular office-holder, that raises legitimate questions about the strength of the system itself.
The Demand Was for System Change, Not Individual Continuity
One of the defining demands of the 2022 Aragalaya movement was “system change.”
The call was not merely for the replacement of individuals. It was for the creation of stronger, more accountable, and more independent institutions capable of functioning effectively regardless of who occupies office.
Against that backdrop, it is entirely reasonable for the public to question reforms that appear to rely on extending the tenure of individuals rather than strengthening institutions.
Why the Government Must Provide Clear Answers
If the proposed amendment is genuinely intended to improve judicial efficiency, the government should clearly and transparently explain its rationale.
The public deserves answers to several basic questions:
- Why is this amendment necessary?
- Why is it being introduced now?
- Why has this particular method been chosen?
- Which specific aspect of the case backlog will it address?
- What evidence supports the claim that it will improve efficiency?
These questions should be answered through data, research, and expert analysis, rather than through political rhetoric or social media campaigns.
The government should also explain what consideration has been given to proposals submitted by professional bodies, including the Bar Association of Sri Lanka, regarding more comprehensive solutions to judicial delays.
Justice Must Be Both Fast and Fair
No one disputes the importance of reducing the case backlog.
However, the success of a judicial system cannot be measured solely by the number of cases disposed of.
Cases may be concluded more quickly, but if fairness, due process, and judicial independence are compromised, justice itself suffers.
Any genuine reform effort must therefore be guided by two principles:
- The expeditious disposal of cases.
- The preservation of judicial quality, fairness, and independence.
Treat the Disease, Not the Symptom
Sri Lanka undoubtedly needs meaningful solutions to address the backlog of cases. However, extending the retirement age of judges alone is unlikely to achieve that objective.
Court delays are the product of multiple interconnected problems:
- Delays in forensic and analyst reports.
- Weaknesses in police investigations.
- Vacancies within the Attorney General’s Department.
- Insufficient numbers of judges and court staff.
- Outdated laws and procedures.
- Inefficient case management systems.
Real reform requires addressing these structural issues comprehensively.
Otherwise, extending judges’ retirement ages may provide only temporary relief while leaving the root causes untouched.
Sri Lanka does not need temporary fixes. It needs a justice system built on strong institutions rather than individuals, one capable of delivering both timely and high-quality justice to all citizens.
Based on observations and arguments presented by President’s Counsel Saliya Peiris during the public discussion on the 22nd Amendment and judicial independence held at the Capri Club, Colombo. This is a translation of a Sinhala article published on the Anidda site, and the translation was made with the assistance of AI and checked for correctness. Any shortcomings in the translation are regretted, and you can read the original Sinhala article here