The National Movement for Social Justice (NMSJ) said lawmakers must ensure the Supreme Court is not placed in a position of determining a matter concerning the tenure of its own judges when considering the proposed 22nd Amendment to the Constitution, warning that the issue could raise questions over judicial independence and public confidence in the administration of justice.
Issuing a statement it said: The National Movement for Social Justice (NMSJ) is of the view that the proposed extension of the terms of judges of the higher courts through the proposed 22nd Amendment to the Constitution should be carried out only after careful consideration and a deep, multi-party discussion involving all relevant stakeholders.
In this process, it is the responsibility of all parties to ensure that the Supreme Court (SC) is not placed in a position where it has to hear a case concerning the extension of the terms of its own judges.
Particular attention must be paid to the independence of the Judiciary. Article 105(7) of the Constitution contains the only reference to the retirement age of any elected or appointed public official, in relation to judges of the SC and the Court of Appeal (CA). This is a fundamental safeguard for judicial independence.
The role of the Judiciary includes examining the legality and constitutionality of actions taken by the Executive and the Legislature. Therefore, protecting the tenure and privileges of judges is essential.
The foremost responsibility of all parties must be to ensure that any reform is carried out without causing damage to the image and integrity of the Judiciary, which is responsible for administering justice.
The Bill containing the proposed 22nd Amendment has now been gazetted and was presented to Parliament today (18). Several parties have already indicated that they intend to seek judicial review of the constitutionality of the proposed amendment.
The dilemma that arises here is that the judges who may hear such a case could be required to determine an issue directly concerning the extension of their own terms of office. This raises the fundamental legal principle that no person should be a judge in his or her own case, known by the longstanding principle nemo judex in causa sua.
The proposed amendment has created a situation in which the Judiciary could be required to confront this principle. Under the Constitution, it is the SC that is empowered to examine the constitutionality of Bills. As a result, the proposed amendment could place judges in the position of considering a matter that directly concerns their own tenure.
This is an issue that must be examined with great care, including by considering how other countries deal with similar situations. In Canada, provincial judges can be called upon to sit in the SC for special cases. In England, one method used for such special cases is to appoint recently retired judges to an additional panel to hear them.
Many other countries have established separate constitutional courts. Austria, Germany, South Korea, South Africa, Indonesia, Thailand and Trkiye are among the countries where the constitutionality of legislation is examined by constitutional courts.
Sri Lanka has neither a separate constitutional court nor a panel of retired judges that could be called upon for such cases.
It was possible to draft the proposed amendment from the outset in a manner that would allow the terms of SC judges to be extended without creating a conflict with established legal principles. It is still possible to make such a correction.
Therefore, solutions are available to Sri Lankan lawmakers within the existing constitutional framework. The proposed Bill should be amended accordingly.
If, after the proposed 22nd Amendment is referred to the SC, the Court determines that it requires approval at a referendum, the final decision will rest with the people. In such a situation, there would be no conflict with the principle against a person hearing his or her own case, since the decision would ultimately be made directly by the people. The principle of justice would therefore not be compromised in that manner.
A fundamental principle of justice is that it is not enough for justice to be fair. It must also be seen and perceived to be fair.
If the terms of the sitting judges are extended under the proposed amendment without a direct decision by the people through a referendum, there would be greater room for various parties to argue that the administration of justice does not appear fair to everyone.
At the same time, increased pressure on the Judiciary to demonstrate its fairness and impartiality could also cast a shadow over judicial decision-making. In either situation, public confidence in the independence and impartiality of the Judiciary could be weakened.
The public has maintained a strong level of confidence in the SC despite the many crises and challenges the country has faced. In the past, the Judiciary itself, as well as many civil society and professional organisations, have made significant efforts to protect the independence of the Court.
In considering these circumstances, the NMSJ believes that the responsibility of lawmakers is to exercise the sovereignty of the people in a manner that does not place the SC in a position where it has to hear its own case and does not weaken public confidence in the independence of the Judiciary.
We believe that a respectful solution can be reached through a constructive discussion with the Bar Association of Sri Lanka. Resolving the unfortunate and deeply damaging division that has emerged in the country at present would help the country move forward.
As a civil society organisation that has made a significant commitment to protecting democracy from its inception, we consider it our national responsibility to make the Government and the people aware of these matters.