August 25, Colombo (LNW): The Bar Association of Sri Lanka (BASL) has raised concerns before the Supreme Court over the proposed extension of the retirement age of superior court judges, arguing that the legislation could create a potential conflict of interest for judges who may themselves benefit from the changes.
The concerns were set out in a Special Determination petition filed by BASL President Rajeev Amarasuriya and Secretary Nalin De Silva, challenging the constitutionality of the proposed Twenty-Second Amendment to the Constitution.
At the centre of the petition is the question of whether additional tenure and associated financial and other benefits proposed for serving judges could potentially fall within the meaning of a “gratification” under the Anti-Corruption Act No. 9 of 2023, as amended.
The BASL has emphasised that it is not accusing any member of the judiciary of misconduct. Rather, it has drawn attention to the issue because the same judges who could benefit from an extension may also be called upon to decide whether the legislation providing for that extension is constitutionally valid.
The association has referred specifically to Section 93(b) of the Anti-Corruption Act, which deals with bribery involving Supreme Court and Court of Appeal judges and other persons exercising judicial or quasi-judicial powers. The provision covers situations in which gratification is solicited or accepted as an inducement or reward for an act or omission carried out in a judicial capacity.
The petition notes that a conviction under the provision can carry a fine of up to Rs.1 million and a term of rigorous imprisonment of up to seven years.
At the same time, the BASL acknowledges that questions could arise over whether legislative or judicial actions fall outside the scope of the relevant anti-corruption provisions. Its reference to the legislation, it says, is intended primarily to highlight the potential public perception and institutional concerns surrounding the proposed arrangement.
The association argues that the issue goes beyond the personal interests of individual judges and could affect public confidence in the independence of the Judiciary. In particular, it says that decisions involving the Government could later be viewed against the backdrop of a law that had extended the judges’ own terms of office.
The BASL is therefore seeking a declaration that the proposed constitutional amendment requires approval by the people at a referendum. It contends that the proposed changes could have implications for judicial independence and the sovereignty of the people.
The association has also asked the Chief Justice to convene a full bench of all sitting Supreme Court judges to consider the matter, citing the exceptional constitutional questions involved as well as the potential conflict-of-interest concerns.
The Twenty-Second Amendment Bill was published in the Gazette on 7 August and presented to Parliament on 18 August. Parliament has confirmed that the Bill contains proposals to raise the retirement age of Supreme Court judges from 65 to 67 and that of Court of Appeal judges from 63 to 65.
The proposed legislation would also establish a separate retirement rule for the Chief Justice, providing for retirement at 67 or after six years in the position, whichever occurs first. In addition, the maximum number of Court of Appeal judges would be increased from 19 to 24.
The Government has previously said the wider judicial reforms are intended to improve the efficiency of the justice system and help deal with the backlog of cases.
The constitutional challenge now places the proposed changes under judicial scrutiny, with the outcome likely to have wider implications for the balance between judicial independence, constitutional reform and public confidence in Sri Lanka’s justice system.