Opposition MP and Attorney-at-Law Dayasiri Jayasekera has filed a constitutional petition before the Supreme Court challenging the proposed 22nd Amendment to the Constitution, arguing that its move to extend the retirement age of superior court judges could affect judicial independence, security of tenure and ultimately the sovereignty of the People.
The petition takes particular aim at Clause 2 of the Bill, which proposes to amend Article 107(5) to raise the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65.
At the heart of the challenge is whether the new retirement ages could apply to judges already serving on the superior courts. Jayasekera argues that the Bill contains no transitional provision expressly excluding incumbent judges, potentially allowing their tenure to be extended after appointment.
The petitioner contends that such an extension cannot be viewed simply as an administrative change to retirement ages, but must be examined against the constitutional guarantees underpinning judicial independence and the separation of powers.
Relying principally on Article 3 read with Article 4(c), the petition argues that judicial power is exercised on behalf of the People and that the independence and security of tenure necessary for judges to exercise that power form part of the constitutional protection of the sovereignty of the people.
The challenge therefore raises a potentially significant question over whether the proposed amendment requires more than the two-thirds parliamentary majority normally required for constitutional amendments.
Jayasekera asks the Supreme Court to determine whether the proposed amendment, either as a whole or specifically Clause 2, affects matters protected by Article 83 and therefore requires approval at a referendum in addition to the prescribed parliamentary majority.
The petition comes amid an increasingly contentious debate over the Government’s proposed changes to the judicial system, with the administration maintaining that the reforms are aimed at strengthening judicial capacity and addressing long-standing delays rather than benefiting particular judges.
President Anura Kumara Dissanayake, in a discussion with the Bar Association of Sri Lanka (BASL) on earlier this week, rejected allegations that the proposed reforms were designed around particular individuals, insisting that the Government was pursuing a broader ‘systemic change’ in the judiciary.
Jayasekera’s petition, however, puts the focus on whether changing the tenure of serving judges could itself undermine the constitutional principle of judicial independence.
The petitioner also invokes a range of international and Commonwealth standards on judicial independence, including the International Covenant on Civil and Political Rights, the UN Basic Principles on the Independence of the Judiciary, the Bangalore Principles of Judicial Conduct, the Latimer House Principles and the Commonwealth Charter.
A further issue raised concerns Article 78(3) and the possibility of amendments being introduced during the Committee Stage to clarify whether the new retirement ages would apply to incumbent judges.
The petition argues that if such a provision were introduced at Committee Stage and substantively altered the operation of the Bill, rather than merely correcting a technical or consequential matter, questions could arise over its constitutional validity.
It also raises the legal principle nemo judex in causa sua, that no person should be a judge in their own cause, arguing that the proposed amendment creates an unusual constitutional situation because the Supreme Court could be called upon to determine legislation directly affecting the tenure, rights and privileges of members of the Judiciary.
Jayasekera is seeking a determination that the proposed 22nd Amendment is inconsistent with Article 3, either independently or read with Article 4(c), and therefore requires both a two-thirds majority in Parliament and approval by the People at a referendum.
Alternatively, he is seeking the same determination in relation to Clause 2 concerning the retirement ages of superior court judges.
The case could consequently test a much broader constitutional proposition than whether judges should retire at 65 or 67: whether Parliament can alter the tenure of serving superior court judges without triggering the constitutional protections attached to the sovereignty of the People and judicial independence.