Judicial Independence, Retirement Age and Recusal of Sitting Judges: A Sri Lankan Constitutional and Comparative Legal Analysis

Oct 14, 2026 at 01:03 PM

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Lanka Leader

Abstract

The retirement age of judges is not merely an administrative or employment-related matter. It forms part of the institutional framework governing judicial tenure and therefore has a direct relationship with judicial independence, security of tenure, judicial impartiality and the separation of powers. This article examines the constitutional position in Sri Lanka concerning the retirement age of Supreme Court and Court of Appeal judges and considers whether the retirement age of judges already holding office may constitutionally be altered. It further examines the related question whether a sitting judge whose own tenure would be extended by such an amendment may participate in determining its constitutional validity. The analysis considers Article 107 of the Constitution, particularly the guarantees of tenure during good behaviour, the constitutional retirement ages and the removal procedure, together with Article 111C and Articles 82, 83, 120 and 124. Sri Lankan jurisprudence on nemo judex in causa sua, including Hon. Attorney-General v Shirani Bandaranayake, Senarath v Chandrika Bandaranayake Kumaratunga, Centre for Policy Alternatives v Attorney-General and Sunway International v Airport & Aviation Services, is examined. Comparative jurisprudence from Poland, Hungary, Kenya and the European Court of Human Rights is then considered, particularly Commission v Poland (C-619/18), Commission v Poland (C-192/18) and Pająk and Others v Poland. The article argues that international law does not establish an absolute prohibition on increasing judicial retirement ages, but strongly supports the proposition that retrospective or arbitrary changes affecting sitting judges require compelling justification and appropriate transitional safeguards. Where a judge has a direct personal interest in the continued operation of an amendment extending his or her own tenure, the principles of nemo judex in causa sua and reasonable apprehension of bias become particularly important. The doctrine of necessity may, however, complicate an automatic recusal requirement where disqualification would prevent the Court from exercising constitutionally conferred jurisdiction.

Keywords: judicial independence; judicial tenure; retirement age; sitting judges; recusal; nemo judex in causa sua; reasonable apprehension of bias; Sri Lankan Constitution; separation of powers; judicial impartiality.

1. Introduction

Judicial independence is a fundamental component of the rule of law. Courts cannot perform their constitutional function of controlling the legality of governmental action if judges are vulnerable to arbitrary alteration of their tenure by the political branches of government. Security of tenure is consequently one of the principal institutional guarantees of an independent judiciary.

The question becomes particularly important when a legislature proposes to alter the retirement age of judges who are already holding judicial office. A prospective change applicable only to judges appointed after the amendment is legally different from a change applied to judges whose appointments were made under an earlier constitutional regime. In the latter situation, the State is not merely establishing a future condition of judicial office; it is altering an existing constitutional condition of tenure.

Sri Lanka's Constitution provides a particularly important framework for analysing this question. Article 107(2) provides that judges of the Supreme Court and Court of Appeal hold office during good behaviour and establishes a special constitutional procedure for their removal. Article 107(5) expressly provides that the retirement age of Supreme Court judges is 65 and that of Court of Appeal judges is 63.

Consequently, a proposal to increase these ages raises at least three distinct legal questions:

whether Parliament possesses the constitutional power to amend the retirement-age provision;

whether applying the amendment to sitting judges is compatible with judicial independence and security of tenure; and

whether a sitting judge who personally benefits from the amendment should participate in adjudicating its constitutional validity.

These questions must be distinguished. The constitutional power to amend the Constitution does not necessarily answer the question whether a particular exercise of that power is compatible with other constitutional principles governing judicial independence and adjudication.

2. Constitutional Framework of the Sri Lankan Judiciary

2.1 Chapter XV — The Judiciary

Chapter XV of the Constitution, Articles 105–117, establishes the constitutional framework of the judiciary. Article 105 establishes the Supreme Court, Court of Appeal, High Court and other courts and institutions established by law.

The significance of Chapter XV lies in the fact that judicial power is not treated merely as an administrative function. The Constitution establishes institutional guarantees concerning judicial appointment, tenure, removal, remuneration and independence.

2.2 Article 107 — Appointment, tenure, removal and retirement

Article 107 is central to the present inquiry.

Article 107(1) provides for the appointment of the Chief Justice, President of the Court of Appeal and other judges of the Supreme Court and Court of Appeal by the President, subject to the constitutional appointment mechanism.

Article 107(2) provides that every such judge shall hold office during good behaviour and may be removed only through the constitutionally prescribed procedure on the ground of proved misbehaviour or incapacity.

Article 107(3) requires Parliament to provide by law or Standing Orders for matters relating to the presentation of an address for removal, including investigation, proof and the judge's right to appear and be heard.

Article 107(4) requires an appointee to take the prescribed constitutional oath or affirmation before entering office.

Most importantly for present purposes, Article 107(5) provides:

“The age of retirement of Judges of the Supreme Court shall be sixty-five years and of Judges of the Court of Appeal shall be sixty-three years.”

Thus, the retirement age is itself a constitutional provision. It is not merely a condition contained in an ordinary statute or administrative regulation.

This distinction is crucial. A judge appointed when Article 107(5) prescribes retirement at a particular age enters office against a constitutional background in which that retirement age forms part of the legal framework governing the office.

2.3 Article 108 — Financial security

Article 108 provides that salaries of Supreme Court and Court of Appeal judges are determined by Parliament and charged on the Consolidated Fund. More importantly, the salary payable to, and pension entitlement of, a judge of the Supreme Court or Court of Appeal cannot be reduced after appointment.

Although Article 108 does not directly prohibit an increase in retirement age, it demonstrates that the Constitution regards certain aspects of the economic and professional security of judges as sufficiently important to receive constitutional protection.

2.4 Article 111C — Protection against interference with judicial functions

Article 111C is headed “Interference with judiciary an offence.”

Article 111C(1) requires judges and other persons entrusted with judicial powers to exercise their functions without being subjected to direction or interference from other persons, except where legally authorised supervision exists.

Article 111C(2) makes unlawful interference with judicial functions a criminal offence.

Article 111C does not expressly regulate retirement age. Nevertheless, it is constitutionally significant because it demonstrates the Constitution's explicit concern with protecting the judiciary from improper interference.

A measure which formally alters tenure is therefore capable of being examined not merely as an employment regulation but in the broader context of constitutional judicial independence.

3. Amendment of the Retirement Age: Prospective and Retrospective Changes

A fundamental distinction must be made between two situations.

3.1 Prospective amendment

Parliament could amend Article 107(5) so that judges appointed after the amendment have a retirement age of, for example, 67 years.

Such an amendment would generally present fewer concerns because persons appointed thereafter would know the applicable retirement age when accepting judicial office.

3.2 Application to sitting judges

A different situation arises where a judge was appointed under a constitutional provision prescribing retirement at 65, but Parliament subsequently changes the provision and applies the new age to that judge.

The State would then be altering the legal conditions applicable to an existing constitutional appointment.

International constitutional jurisprudence strongly suggests that such retrospective changes require particular scrutiny.

The Venice Commission has stated that security of tenure until mandatory retirement or expiry of the judicial term is a fundamental guarantee of judicial independence. Its 2025 opinion on Montenegro expressly observed that retroactive changes to the retirement age or term of office of judges affect judicial independence, and warned against such changes where they are made hastily or without convincing justification.

The Venice Commission's updated Rule of Law Checklist similarly treats appointment until a specified retirement age and protection against arbitrary alteration of judicial tenure as important indicators of judicial independence.

This does not establish an absolute rule that a retirement age can never be changed for serving judges. Rather, it establishes a strong constitutional principle requiring particular justification and safeguards where an existing judicial tenure is affected.

4. Comparative Jurisprudence

4.1 Commission v Poland (C-619/18)

The most important comparative authority is European Commission v Republic of Poland, Case C-619/18, decided by the Grand Chamber of the Court of Justice of the European Union on 24 June 2019.

Poland reduced the retirement age of Supreme Court judges from 70 to 65. Critically, the new retirement age applied to judges who were already in office. The legislation also permitted judges to continue beyond the new age subject to discretionary authorisation by the President of the Republic.

The CJEU held that the measure violated the principles of judicial independence and irremovability of judges. The Court was particularly concerned that the legislation could result in premature termination of the judicial mandates of sitting judges and that continuation depended upon discretionary executive action.

The case demonstrates an important principle:

The legal conditions governing judicial tenure cannot be manipulated in a manner that undermines the independence and security of tenure of  judges already holding office.

The case does not establish that every alteration of retirement age is unconstitutional. Its significance lies in the combination of retroactive application, premature termination and executive discretion.

4.2 Commission v Poland (C-192/18)

In Commission v Republic of Poland, C-192/18, the CJEU considered legislation lowering the retirement age of judges of the ordinary courts and permitting continuation after that age through authorisation by the Minister for Justice.

The Court again treated judicial independence and irremovability as central considerations.

The case is particularly relevant where a retirement-age amendment gives the executive discretion to determine which individual judges may continue in office.

Accordingly, if a retirement-age amendment in Sri Lanka were coupled with discretionary power to select particular judges for extension, the constitutional concern would be significantly greater.

4.3 Pająk and Others v Poland

The European Court of Human Rights considered another Polish judicial-retirement reform in Pająk and Others v Poland, applications nos. 25226/18, 25805/18, 8378/19 and 43949/19, judgment of 24 October 2023.

The legislation lowered the retirement age for female judges from 67 to 60 and for male judges to 65, and continuation after retirement age depended upon authorisation by the Minister of Justice and the National Council of the Judiciary.

The ECtHR found a violation of Article 6 §1 concerning access to a court and also found discrimination under Article 14 taken with Article 8 in relation to three applicants. The Court emphasised that judges should be protected against arbitrary decisions of legislative and executive authorities and characterised the relevant decisions as arbitrary and unlawful interference with judicial independence and protection from removal from judicial office.

Although Pająk concerned a reduction rather than an increase in retirement age, the principle is highly relevant: judicial retirement arrangements can engage judicial independence and cannot be treated simply as ordinary employment conditions

.4.4 Hungary

Hungary provides another significant comparative example. Its judicial reforms reduced the retirement age of judges from 70 to 62. The Hungarian Constitutional Court considered the compatibility of the measure with judicial independence and security of tenure.

The Hungarian experience is particularly instructive because the constitutional concern was not merely the age itself but the effect of abruptly changing the tenure expectations of judges already holding office.

The subsequent European human-rights jurisprudence concerning Hungary, including Baka v Hungary, reinforced the importance of judicial independence, institutional autonomy and protection of judicial tenure.

4.5 Baka v Hungary

In Baka v Hungary, the Grand Chamber of the European Court of Human Rights considered the premature termination of the applicant's position as President of Hungary's Supreme Court following constitutional reforms.

The case is not itself a retirement-age case. Its significance is broader: institutional restructuring cannot be used arbitrarily to terminate or undermine the constitutionally protected tenure of judicial office.

It therefore provides an important comparative principle: judicial independence includes protection against legislative measures whose practical effect is to manipulate judicial tenure.

4.6 Kenya — Rawal v Judicial Service Commission

The Kenyan litigation concerning Justice Kalpana Rawal provides a useful Commonwealth comparison.

The issue concerned the effect of Kenya's 2010 constitutional framework upon judges appointed under the previous constitutional regime, particularly whether the applicable retirement age was 70 or 74.

The case demonstrates the constitutional difficulty created when a new retirement rule is applied to judges who entered office under an earlier legal regime.

However, Rawal should not be cited as establishing an absolute prohibition on retrospective alteration of retirement age. The Kenyan courts ultimately upheld the application of the new constitutional regime. Its principal value is therefore comparative: it demonstrates the importance of transitional arrangements, legitimate expectations and judicial tenure.

4.7 Venice Commission

The Venice Commission's comparative constitutional work is especially important because it distinguishes between legitimate reform and arbitrary alteration of judicial tenure.

In its 2025 Montenegro opinion, it stated that retirement-age changes affecting sitting judges can affect judicial independence and that such changes are particularly problematic when  made hastily or without convincing justification.

Its 2026 opinion concerning Finland also illustrates the importance of non-retroactivity in judicial retirement arrangements. The Commission welcomed a provision prohibiting retroactive application of a provision lowering the retirement age of the Prosecutor General and regarded such protection as strengthening institutional independence.

These opinions are not binding judgments, but they constitute highly persuasive comparative constitutional material.

5. The Principle of Nemo Judex in Causa Sua in Sri Lankan Law

The second major issue concerns whether a judge personally affected by a retirement-age amendment can participate in adjudicating its validity.

The basic principle of natural justice is expressed by the maxim:

Nemo judex in causa sua — no person should be a judge in his or her own cause.

Sri Lankan courts have recognised this principle repeatedly.

5.1 Hon. Attorney-General v Dr Shirani Bandaranayake

The case concerning the impeachment of former Chief Justice Dr Shirani Bandaranayake is particularly important.

The Supreme Court considered the application of nemo judex in causa sua to the involvement of the Supreme Court in proceedings concerning a judge of the same Court.

The Court referred to the classic formulation in In re Pinochet and explained two forms of the principle. First, automatic disqualification may arise where the judge is actually a party or has a financial or proprietary interest in the outcome. Secondly, disqualification may arise where circumstances create a reasonable suspicion that the judge is not impartial.

Most significantly, the Court observed that an arrangement allowing the Supreme Court to play a role in the impeachment of the Chief Justice or another judge of that same Court would conflict with nemo judex in causa sua.

This authority has exceptional relevance to the retirement-age question because it recognises that the principle applies to institutional judicial conflicts, not merely conventional litigation between private parties.

5.2 Senarath and Others v Chandrika Bandaranayake Kumaratunga and Others

In Senarath and Others v Chandrika Bandaranayake Kumaratunga and Others (2007) 1 SLR 59, the Supreme Court applied the principle to a matter involving the personal entitlement of the former President.

The Court stated that, in official matters, the general rule is that a person should refrain from participating in a process where the decision relates to his or her entitlement or personal interest. The Court described nemo judex in causa sua as a principle of natural justice.

The significance of this case for the present question is substantial.

If a judge personally stands to gain an additional two years of judicial tenure from a constitutional amendment, the amendment could arguably be characterised as a matter directly affecting that judge's personal legal interest.

5.3 Centre for Policy Alternatives (Guarantee) Ltd and Saravananmuttu v Attorney-General and Others

In SC/FR/449/2019, judgment delivered on 29 February 2024, the Supreme Court considered whether a sitting President's participation in Cabinet proceedings concerning his own retirement benefits violated nemo judex in causa sua.

The Supreme Court expressly stated:

“if the President participates and/or sits as the head of the Cabinet of Ministers when a matter in which he has a personal interest is discussed and approved, such a decision is in violation of the principle of nemo judex in causa sua.”

The Court relied on Senarath and treated the principle as part of natural justice.

This is particularly significant because it is a relatively recent Supreme Court authority and because the personal interest involved was itself connected with retirement benefits.

The analogy with a judicial retirement-age amendment is therefore powerful, although it must not be treated as mechanically determinative.

5.4 Sunway International (Pvt) Ltd v Airport & Aviation Services (Sri Lanka) Ltd

In Sunway International (Pvt) Ltd and Another v Airport & Aviation Services (Sri Lanka) Ltd and Others (2019) 2 SLR 1, the Supreme Court expressly recognised nemo judex in causa sua as a principle relevant to administrative and constitutional decision-making.

The case demonstrates the continuing application of the rule against bias in Sri Lankan public law.

6. Reasonable Apprehension of Bias

The law does not necessarily require proof that a decision-maker is actually biased.

Sri Lankan jurisprudence recognises circumstances in which an objective assessment of the situation may require disqualification.

Geeganage v Director General of Customs

In Geeganage v Director General of Customs (2001) 3 SLR 179, the Court of Appeal emphasised that an adjudicator who is likely to be biased ought to be disqualified.

The Court observed that bias can operate insidiously and unconsciously and that an adjudicator may honestly believe that he or she is acting impartially while nevertheless being affected by circumstances. The Court also emphasised that justice must be rooted in confidence.

This principle is highly relevant to a sitting judge personally affected by a retirement-age amendment.

The question would not necessarily be:

“Is the judge actually biased?”

It may instead be:

“Would a reasonable and informed observer have grounds to apprehend that the judge's personal interest could affect, or appear capable of affecting, impartial adjudication?”

That distinction is fundamental.

7. Application to a Challenge Concerning the Retirement Age of Sitting Judges

Consider the following hypothetical.

A judge of the Supreme Court is currently 64 years old. Under Article 107(5), the judge would retire at 65.

Parliament introduces an amendment providing that Supreme Court judges shall retire at 67.

A constitutional challenge is then brought concerning the validity of the amendment.

The judge is required to decide whether the amendment which would extend his or her own tenure by two years is constitutionally valid.

The situation raises an obvious nemo judex concern.

The argument would be:

The judge has a direct personal interest in the practical effect of the legislation.

The decision concerns the duration of the judge's own constitutional tenure.

The judge would personally benefit from one possible outcome.

Sri Lankan Supreme Court jurisprudence recognises that participation in a decision concerning one's own entitlement can violate nemo judex in causa sua.

Geeganage demonstrates that actual proof of subjective bias is not necessary where circumstances create a reasonable basis for apprehending bias.

Shirani Bandaranayake demonstrates that nemo judex applies to institutional judicial conflicts involving judges of the same court.

This does not necessarily mean that the judge is automatically disqualified. But it creates a serious and legally arguable recusal issue.

8. The Doctrine of Necessity

The strongest counterargument is the doctrine of necessity.

The doctrine of necessity is an exception to the rule against bias. It may permit a person who would ordinarily be disqualified to act where there is no other legally competent decision-maker capable of performing the necessary function.

This doctrine creates a difficult problem in constitutional litigation concerning the retirement age of Supreme Court judges.

If every sitting Supreme Court judge is potentially affected by an amendment increasing the retirement age, and every judge were required to recuse, the Court might be unable to exercise its constitutionally assigned jurisdiction.

The question would then become:

Does the necessity of maintaining a functioning constitutional court justify participation despite the potential conflict?

This issue must be carefully distinguished from the ordinary rule against bias.

The existence of necessity does not eliminate the conflict. Rather, it potentially provides an exception where recusal would make the exercise of constitutional jurisdiction impossible.

Geeganage itself is useful because the Court expressly noted that the case before it was not one of necessity, since another officer could have conducted the inquiry.

That observation illustrates an important requirement of the doctrine: necessity is relevant only where an alternative lawful decision-maker is unavailable.

9. Supreme Court Rules and Recusal

The Supreme Court Rules regulate the practice and procedure of the Court, but the absence of a comprehensive rule expressly stating that a judge must recuse whenever he or she has a personal interest does not mean that recusal principles are absent from Sri Lankan law.

The legal foundation of recusal is broader and includes:

natural justice;

nemo judex in causa sua;

judicial impartiality;

reasonable apprehension of bias;

judicial independence;

the rule of law; and

constitutional principles governing the exercise of judicial power.

Consequently, a recusal application may be founded on constitutional and common-law principles even where no particular Supreme Court Rule provides a complete procedural code for the situation.

The cases discussed above demonstrate that Sri Lankan courts have treated the rule against bias as a principle of public law rather than merely a technical procedural rule.

10. Judicial Independence and the Separation of Powers

The retirement-age question should therefore be analysed within the broader constitutional structure.

Judicial independence has at least two dimensions.

Institutional independence

The judiciary as an institution must be protected against political manipulation.

Individual independence

Individual judges must possess sufficient security of tenure and freedom from arbitrary interference to decide cases according to law.

An amendment retrospectively changing the retirement age of sitting judges may affect both.

If a government changes the retirement age for legitimate and general reasons and applies the new rule uniformly, the constitutional concern may be relatively limited.

If, however, the timing or design of the amendment suggests that its purpose is to:

retain particular judges;

remove particular judges;

alter the ideological or institutional composition of a court;

reward judges;

influence pending constitutional litigation; or

secure favourable judicial outcomes,

the implications for judicial independence become substantially more serious.

The CJEU's reasoning in Commission v Poland is especially instructive because the Court examined not only the formal structure of the retirement legislation but also its practical effect upon the composition and independence of the Supreme Court.

11. Does International Law Prohibit Increasing the Retirement Age?

A careful scholarly analysis should avoid overstating the international jurisprudence.

There is no general international rule providing that a State is absolutely prohibited from increasing the retirement age of sitting judges.

The strongest international cases generally concern:

lowering retirement ages;

premature termination;

executive discretion to extend judicial tenure;

arbitrary changes to judicial tenure; or

institutional restructuring affecting sitting judges.

Accordingly, the correct proposition is not:

“International law prohibits increasing the retirement age of sitting judges.”

Rather:

International constitutional and human-rights jurisprudence establishes that judicial tenure and retirement arrangements are components of judicial independence and that retrospective, arbitrary or politically motivated alterations affecting sitting judges require particularly careful constitutional scrutiny and appropriate safeguards.

The Venice Commission's formulation is especially useful: it expressly recognises that retroactive changes to retirement age or term of office can affect judicial independence.

12. A Proposed Constitutional Test for Sri Lanka

In evaluating a Sri Lankan amendment to Article 107(5), the following five-stage test could be developed.

Stage 1 — Constitutional authority

Does Parliament possess the requisite power and follow the required constitutional amendment procedure under Articles 82 and 83?

Stage 2 — Nature of the amendment

Is the amendment:

prospective only; or

applicable to judges already holding office?

The latter deserves heightened scrutiny.

Stage 3 — Judicial-independence impact

Does the amendment affect:

security of tenure;

judicial irremovability;

institutional independence;

separation of powers; or

public confidence in the judiciary?

Stage 4 — Purpose and effect

Is there an objectively legitimate justification for the amendment?

Or does the evidence suggest that it is designed to influence the composition or functioning of the judiciary?

Stage 5 — Transitional safeguards

Does the amendment contain safeguards protecting existing judicial appointments and legitimate tenure expectations?

This final consideration is strongly supported by comparative constitutional practice.

13. Recusal Test for an Affected Judge

If a challenge to the amendment reaches the Supreme Court, a separate five-stage recusal inquiry could be applied.

First

Does the judge have a direct personal or financial interest in the outcome?

If yes, the case for disqualification is exceptionally strong.

Second

Does the outcome determine or materially affect the judge's own tenure?

If yes, the case engages the principle identified in Senarath and Centre for Policy Alternatives.

Third

Would a reasonable and informed observer apprehend that the judge might not be impartial?

This brings the objective-bias jurisprudence, including Geeganage, into consideration.

Fourth

Is there a direct institutional conflict similar to the concern identified in Shirani Bandaranayake?

If the Court is effectively deciding an issue concerning the tenure of its own members, this question becomes particularly important.

Fifth

Is recusal legally possible without depriving the Supreme Court of its constitutionally necessary jurisdiction?

If not, the doctrine of necessity may need to be considered.

14. Conclusion

The retirement age of judges occupies a constitutionally sensitive position because it forms part of the framework governing judicial tenure. In Sri Lanka, Article 107(5) expressly fixes the retirement age of Supreme Court judges at 65 and Court of Appeal judges at 63, while Article 107(2) guarantees that judges hold office during good behaviour and establishes a special procedure for removal.

The international jurisprudence does not establish an absolute prohibition on changing a judicial retirement age. A State may ordinarily reform the organisation of its judiciary and may determine retirement ages, particularly for future appointments. The constitutional problem becomes substantially more serious when a new retirement age is applied retrospectively to judges already in office.

The CJEU decisions in Commission v Poland (C-619/18) and Commission v Poland (C-192/18) demonstrate that alteration of judicial retirement arrangements can violate judicial independence where it affects sitting judges and permits executive interference with continuation in office.  The ECtHR judgment in Pająk and Others v Poland further confirms that judicial retirement arrangements can engage protection against arbitrary interference with judicial independence and judicial tenure.  The Venice Commission has gone further in explicitly stating that retroactive changes to retirement age or judicial terms of office affect judicial independence.

For Sri Lanka, therefore, the strongest constitutional argument is not that Parliament is categorically prohibited from increasing the retirement age. Rather, it is that a retrospective alteration of Article 107(5), applicable to sitting judges, must be examined against the constitutional guarantees of judicial independence, security of tenure, judicial irremovability and the separation of powers.

An even more difficult question arises when an affected sitting judge is called upon to determine the constitutional validity of the very amendment that extends his or her own tenure. Sri Lankan jurisprudence provides a substantial foundation for a recusal argument. Senarath establishes that a person should not participate in an official decision concerning his or her own entitlement; Centre for Policy Alternatives v Attorney-General reaffirmed that participation in a decision concerning one's personal interest violates nemo judex in causa sua; Geeganage demonstrates the significance of reasonable apprehension of bias; and Shirani Bandaranayake specifically recognises the constitutional danger of the Supreme Court participating in a matter concerning the tenure or removal of one of its own judges.

Nevertheless, recusal cannot be considered in isolation. If the recusal of all affected judges would leave the Supreme Court unable to exercise constitutionally assigned jurisdiction, the doctrine of necessity may become decisive.

The central constitutional proposition emerging from the comparative and Sri Lankan materials is therefore this:

The retirement age of a judge is an element of judicial tenure; judicial tenure is an element of judicial independence; and judicial independence requires protection against arbitrary retrospective alteration of the conditions of judicial office. Where a judge's own legal tenure is directly affected by the measure under adjudication, the principles of nemo judex in causa sua and reasonable apprehension of bias require serious consideration, subject to the possible application of the doctrine of necessity.

This approach provides a more constitutionally precise framework than treating the proposed retirement-age change as an ordinary question of public-sector retirement policy.

Selected Authorities and Bibliography

Sri Lankan constitutional provisions

Constitution of the Democratic Socialist Republic of Sri Lanka, Chapter XV, particularly Articles 105–117.

Article 107 — Appointment, tenure, removal and retirement of Supreme Court and Court of Appeal judges.

Article 107(5) — Retirement at 65 for Supreme Court judges and 63 for Court of Appeal judges.

Article 108 — Salaries and pension protection.

Article 111C — Interference with judiciary an offence.

Articles 82–83 — Constitutional amendment procedure.

Article 120 — Constitutional jurisdiction concerning Bills.

Article 124 — Constitutional restrictions concerning judicial review of Bills.

Sri Lankan cases

Hon. Attorney-General v Dr Upathissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, Supreme Court, 21 February 2014.

Senarath and Others v Chandrika Bandaranayake Kumaratunga and Others (2007) 1 SLR 59.

Centre for Policy Alternatives (Guarantee) Limited and Saravanamuttu v Attorney-General and Others, SC/FR/449/2019, 29 February 2024.

Sunway International (Pvt) Ltd and Another v Airport & Aviation Services (Sri Lanka) Ltd and Others (2019) 2 SLR 1.

Geeganage v Director General of Customs (2001) 3 SLR 179.

In re Ratnagopal (1968) 71 NLR 409.

Lalith Deshapriya v Captain Weerakoon and Others (2004) 2 SLR 314.

Lanka Loha Holdings (Pvt) Ltd v Attorney-General (2002) 3 SLR 29.

International and comparative authorities

European Commission v Republic of Poland, Case C-619/18, CJEU, Grand Chamber, 24 June 2019.

European Commission v Republic of Poland, Case C-192/18, CJEU, Grand Chamber, 5 November 2019.

Pająk and Others v Poland, Applications Nos. 25226/18, 25805/18, 8378/19 and 43949/19, ECtHR, 24 October 2023.

Baka v Hungary, ECtHR, Grand Chamber, 23 June 2016.

Grzęda v Poland, ECtHR, Grand Chamber.

Rawal v Judicial Service Commission, Kenya.

Venice Commission, Opinion on Montenegro, CDL-AD(2025)029, particularly the discussion of retroactive changes to judicial retirement age.

Venice Commission, Opinion concerning Finland, CDL-AD(2026)003, concerning non-retroactivity of retirement-age changes and judicial/prosecutorial independence.

Venice Commission, Updated Rule of Law Checklist, CDL-AD(2025)002.

International principles

UN Basic Principles on the Independence of the Judiciary, particularly Principle 12 concerning tenure until mandatory retirement or expiry of the term.

International Association of Judges, Universal Charter of the Judge, provisions concerning judicial tenure and retirement.

European Convention on Human Rights, particularly Articles 6 and 14, as applied in the relevant ECtHR jurisprudence.

Dr. Raja Goonaratne,

Attorney-at-Law , 

Senior  Lecturer,

Department of  Legal  Studies,

The  Open  University  of  Sri Lanka