Post-retirement appointments for judges raise serious concerns

The Lawyers’ Collective recently raised serious concerns about the practice of appointing retired judges, particularly those from the Superior Courts, to positions in both the public and private sectors. The Collective said such appointments cast a shadow on the integrity of their prior judgements, regardless of their merit, and could undermine public confidence in the independence of the judiciary.

‘Post-retirement appointments of judges create a cloud over the sanctity of their judgements, irrespective of their merits. They also tend to undermine public faith in judicial independence. It is worse when an appointment is made immediately after retirement,” the Collective said in a statement.

These are valid points raised by the Lawyers Collective. The decision by the Government to appoint the former Chief Justice Jayantha Jayasuriya as Sri Lanka’s Permanent Representative to the United Nations in New York no doubt prompted the group to issue the statement. Ironically Jayasuriya replaces another retired Chief Justice Mohan Peiris who served in New York in the same position for over three years. He was appointed when Gotabaya Rajapaksa became president and the current president Anura Kumara Dissanayake has followed in his footsteps and appointed a retired CJ to the same post.

Post-retirement appointment of judges to positions that carry with them hefty salaries and other benefits are problematic wherever they happen and more so when it’s done by a Government which came to power condemning such appointments made by its predecessors and are now doing the same thing.

This is true of other appointments being made to Sri Lanka overseas missions as well. In a recently released list of names, seven out of the eight were political appointees. Several were active supporters of the National People’s Party (NPP) and two of the appointees reside in the countries of which they have been nominated to serve as Ambassador/High Commissioner. These are straight out of the Rajapaksa rule book but somehow those in Government think people should accept these unquestioningly as they have been voted in with a massive majority. ‘If Rajapaksa can appoint Mohan Peiris, why can’t Dissanayake appoint Jayantha Jayasuriya,’ seems the trend.

While on one hand we can question the Government, we also have to question those who accept such positions. There are ample opportunities for retired judicial officers in academia, overseas job offers, international civil servants’ positions, etc. There are many Lankan former members of the judiciary who have served and continue to serve in high positions internationally and without aligning themselves with any political party.

The Lawyers Collective too explains why retired judges should remain active given the valuable experience and insights acquired by them which should not be wasted after retirement and the country must make good use of their knowledge in a manner that does not raise the suspicion that they were not impartial during their tenure. “There can be no objection to retired judges being appointed as members or Chairpersons of constitutional commissions, Commissions of Inquiry or institutions such as the Law Commission of Sri Lanka, provided they are appointed through mechanisms such as the Constitutional Council, which ensures a national consensus on appointments. Their expertise could also be used in legal education and training of judges and lawyers,” the Collective said.

The group proposed that retirement benefits for judges of the Superior Courts should be equivalent to the emoluments and benefits of judges in service. “They should not perform any function that would bring them monetary gain, advantage, or benefit except as permitted by the Constitution or written law. These matters should be regulated by constitutional or statutory provisions,” the Collective said.

In the meantime, for a Government that came to power taking the moral high ground over its political opponents, this trend shows that the high ground is going underground far sooner than voters anticipated.