By Raj Gonsalkorale

The headline attracting issue in Sri Lanka at present appears to be the proposed two-year extension to the retirement age of judges which the government argues could assist in making a reduction in the massive backlog of pending cases amounting more than 1.1 million as per the Ministry of Justice. Few seem to be realising that this is only a symptom of a far more deep-seated issue arising from years of neglect of the judiciary system where under funding, inadequate remuneration, understaffing and under development of infrastructure has resulted in the accumulation of such a huge backlog.

The Sri Lankan government argues that one immediate strategy to make some reduction in the massive court case backlog, is by utilizing the expertise of senior legal minds serving as judges now by extending the term of Supreme Court judges from 65 to 67 years and Court of Appeal judges from 63 to 65 years, alongside parallel increases for lower courts. However, while retaining legal expertise for an additional two years is one thing, unless current vacancies are filled expeditiously, and perhaps the cadre of judges at all levels is increased, the mathematical result will be a zero net increase in number of judges to tackle the huge backlog of cases. The government argues that the extension is to maintain the total volume of daily judicial work and prevent a catastrophic spike in the backlog caused by upcoming mandatory retirements. While an extension does not instantly add new seats to the bench, the government argues it acts as a stabilizing measure to protect the system’s current capacity.

Rationale and Objectives presented by the government

• Reducing Delays: Officials state that keeping judges on the bench longer helps process stagnant court cases and ease public hardships caused by slow legal proceedings. This makes sense unless the recruitment of judges to fill vacancies arising from judges who retire at the current retirement age is done expeditiously.
• Benefitting from experience: The policy builds on the premise that experienced senior judges still have the ability and capacity to continue contributing productively.
• Life expectancy increase and broader public sector trends: Similar extensions have been proposed or implemented across other specialized public service sectors, such as medical professionals. In a general sense, life expectancy has increased and a case could certainly be made for public officials including judges to work longer and continue serving the public productively. Following information on life expectancy is relevant here.

Life expectancy milestones: According to historical World Bank data, Sri Lanka’s overall life expectancy at birth was about 61.9 years in 1965 and rose to 64.35 years by 1970 when the retirement age for lower-court judges (such as District Court and Magistrate judges) was set at 60. In 1970, the mandatory retirement age for a Supreme Court judge in Sri Lanka was 62 years. The retirement age of Court of Appeal judges (once it was set up in 1971), was 63.

The current total life expectancy at birth in Sri Lanka is approximately 78 years. This marks an increase of about 15 years compared to the era when the retirement age for lower-court judges was set at 60. In terms of the ability and competency for judges (and other public officials) to extend their working life in the public sector has to be consistent with increase in life expectancy which is a result of a better quality of life. This is a point that critics of the government’s proposal must take note.

Impact of a potential exacerbation of the crisis if large numbers reach their current retirement age

The core logic of the extension is to maintain the total volume of daily judicial work and prevent a catastrophic spike in the backlog caused by upcoming mandatory retirements. While an extension does not instantly add new seats to the bench, the government argues it acts as a stabilizing measure to protect the system’s current capacity in the event of retirement of many judges. This point has validity depending on the number of judges at all levels who will reach their current retirement age.

The government uses several key points to argue that this policy helps lower the backlog:

1. Retaining Highly Efficient “Powerhouses”

In higher appellate courts, a massive chunk of the case backlog is cleared by a small percentage of highly experienced, fast-working judges who understand complex legal bottlenecks. Forcing them to retire right as they reach peak efficiency stalls complex trials. Keeping them on the bench for two more years preserves this critical momentum.

2. Eliminating the “Transition Lag”

Whenever a judge retires, a vacancy is created that frequently takes 6 to 12 months (or longer) to fill due to political stalemates, executive delays, and constitutional reviews.

• During this empty period, that judge’s entire active caseload grinds to a complete halt, drastically worsening the backlog.
• Extending the retirement age bypasses this transition gap entirely for two years, keeping those active courtrooms functioning without interruption.

3. Mitigating the severe recruitment shortage

As highlighted by the Ministry of Justice, Sri Lanka is facing a critical brain drain and a lack of qualified applicants willing to join the public bench (e.g., only 33 applicants for 50 magistrate openings). Because the state cannot find enough new, qualified legal minds to fill traditional exits, extending the tenure of existing judges prevents the overall number of active judges from shrinking even further.

4. Maximizing Return on Institutional Knowledge

A judge’s value to the legal system increases with their years on the bench. The state argues that letting senior judges retire early forces the system to spend time and resources training replacements (if they can find them), whereas keeping veteran judges utilizes fully developed judicial expertise to dispose of backlogged cases at a faster rate

Concerns and Opposition

• Judicial Independence: Groups like the Bar Association of Sri Lanka (BASL) and the Commonwealth Lawyers Association have raised concerns that ad-hoc or piecemeal constitutional changes affect judicial neutrality and public trust.
• Lack of Consultation: Critics argue that altering tenure parameters should only happen through broad, transparent structural reforms rather than isolated amendments.

It is reported that Sri Lanka faces a severe shortage of judges and an overwhelming backlog of over 1.1 million pending court cases, with the crisis spanning the entire legal framework, from local Magistrate’s Courts up to the Supreme Court.

The breakdown of the number of pending cases amounting to 1,134,474 according to an official Ministry of Justice report released in Sri Lanka, across 293 courts as of June 30, 2025, are as follows

• Magistrate Courts: 818,869 cases (where the acute shortage of field applicants leaves local courts overwhelmed)
• District Courts: 260,007 cases
• High Court (Criminal): 27,376 cases
• Civil Appellate High Court: 6,591 cases
• Commercial High Court: 6,330 cases
• Supreme Court: 5,396 cases
• Court of Appeal: 5,216 cases

It is also reported that there is a severe institutional deficit with only one Magistrate’s Court for approximately every 315,000 citizens. For context, India has one judicial hall per 65,000 people and the UK has one per 115,000 people. To add to this, Sri Lanka faces a low recruitment crisis with a recent government recruitment drive aiming to hire 50 magistrates attracting 33 applicants, leaving immediate vacancies unfilled at the bottom of the judiciary ladder.  For reasons best known to the government, the Supreme Court and the Court of Appeal have eight unfilled seats and filling these with competent judges would greatly help in reducing the backlog of cases.

Underfunding appears to be a core issue impacting on the judiciary system, as Sri Lanka reportedly allocates just 0.57% of its total government expenditure to the administration of justice (roughly Rs. 2,500 per citizen).

Reasons for the shortage of Judges

• The Severe “Brain Drain” (2022–2024): The residual effects of Sri Lanka’s intense economic crisis triggered a massive wave of professionals migrating out of the country. This severely depleted talent across the entire public sector, including the legal and judicial fields.
• Delays in Executive Appointments: Critics and legal observers note that the executive branch frequently delays filling open seats in the Supreme Court and Court of Appeal.
• Inadequate financial & physical Infrastructure: Low public spending has left courts with aging infrastructure, minimal technological capacity, and uncompetitive compensation packages. This discourages top-tier legal minds from the private Bar from transitioning into public judicial roles.
• Compounded Public Sector Retirement Rules: Previous sweeping policy shifts, such as lowering the public sector retirement age to 60, accelerated an exit of institutional knowledge across state organs, straining administrative support structures that judges rely on

SUMMARY

In respect of the BASL argument that a more holistic approach is needed to address the many issues impacting on the current judiciary system, a case does exist to move towards a well-functioning (including the required infrastructure), well-funded, well trained and well remunerated judiciary. However, it is difficult to understand why and how an extension to the judge’s tenure could be seen as interfering with the judiciary. Perhaps the BASL could have argued for a comprehensive plan with guaranteed funding, that addresses key issues impacting on the judiciary with the extension of the judge’s tenure by two years being one part of such a plan that could be implemented immediately. Such a plan, perhaps spread over 5 years, could have been developed after relevant stakeholder consultations.

It is understood that the Sri Lankan government has an active plan to address severe court delays and backlogs through expanding judicial capacity, digitising courts, which includes raising the mandatory retirement age of judges. The government established three new High Courts for bribery and corruption cases, expanded Colombo Commercial High Court capacity, and added a new court to the Civil Appellate High Court.  Digital workflows have been completed for the Supreme Court and Court of Appeal, with rollouts planned for the rest of the court network. Steps are underway to boost judicial numbers, including appointing new magistrates.

While these are commendable, the government should engage in developing a long-term plan to address issues facing the judiciary and include all of above in such a plan plus other strategies to enable it to serve the people with greater efficiency and effectiveness, justly, impartially and fearlessly. A backlog of over 1.1 million cases is not justice but an injustice to the people.

As the seventh President of the USA, Andrew Jackson said, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”