By: Ovindi Vishmika
August 25, Colombo (LNW): The proposed 22nd Amendment to the Constitution (22A) has triggered a substantial legal challenge, with 21 petitions now reported to have been filed before the Supreme Court of Sri Lanka seeking to prevent the Bill from being enacted in its present form.
The petitions have come from a broad cross-section of the legal profession, political parties, academics and civil-society actors. At the heart of the challenges is the argument that provisions altering the retirement age and tenure of Superior Court judges could affect judicial independence and the sovereignty of the People, and may therefore require approval at a national referendum, in addition to the constitutionally required parliamentary majority.
21 petitions so far
The latest reported figure is 21 petitions.
The most recent petitioners include Vinivida Foundation Treasurer Sunil Jayasundara, Dr. Ajantha Perera, Attorney-at-Law Shiral Lakthilaka and the Young Lawyers’ Association. Earlier challenges were brought by the Bar Association of Sri Lanka (BASL), Prof. G.L. Peiris, Prof. Ranjan Abeyratne, the Samagi Jana Balawegaya, Sarvajana Balaya and several lawyers and civil-society figures.
The legal challenge began almost immediately after the Bill was presented to Parliament on 18 August. Within hours, petitions were filed by, among others, the BASL, SJB, Prof. G.L. Peiris and lawyers’ organisations.
Petitioners have asked the Supreme Court to determine whether the Bill is consistent with the Constitution and, if not, whether it can be passed only with both a two-thirds parliamentary majority and approval at a referendum.
There have been different petition counts reported at different stages of the process, reflecting the rapid filing of cases. For the purposes of a report dated 25 August, however, the latest reported figure is 21.
What does 22A propose?
One of the most controversial elements of the Bill is its proposed change to the retirement ages of Superior Court judges.
Under the proposal:
•the retirement age of Supreme Court judges would increase from 65 to 67;
•the retirement age of Court of Appeal judges would increase from 63 to 65; and
•the maximum number of Court of Appeal judges would also be increased.
The Government has presented the changes primarily as a judicial-efficiency measure, arguing that retaining experienced judges for longer and increasing the number of appellate judges could help tackle delays and the substantial backlog of cases.
That rationale, however, has not satisfied the petitioners.
Why are the petitioners challenging the Bill?
- Judicial independence
The principal objection is that changing the retirement age of judges particularly judges who are already serving could interfere with the independence of the Judiciary.
The argument is not simply that judges should retire at 65 rather than 67. Rather, the petitioners question whether Parliament should be able to change the conditions governing the tenure of a judge after that judge has already assumed office.
Their concern is that judicial independence requires judges to have security of tenure and to be protected from political influence.
The latest reporting specifically identifies the proposed retirement-age changes and the expansion of the Court of Appeal as provisions that petitioners believe could undermine judicial independence.
- Sovereignty of the People
A second major argument concerns Article 3 of the Constitution, which provides for sovereignty to be vested in the People.
The petitioners’ position is that judicial power is an essential component of that sovereignty. Consequently, if an amendment substantially affects the constitutional framework governing the Judiciary, it may not be something Parliament can alter without the direct consent of the People.
This is why many of the petitions are seeking a determination that a referendum is constitutionally necessary.
The BASL, for example, has expressly asked the Supreme Court to determine whether 22A requires approval by the People at a referendum, arguing that the Bill threatens both judicial independence and popular sovereignty.
- Security of tenure of serving judges
Perhaps the most sensitive issue is whether the new retirement ages would apply to judges who are already in office.
Petitioners argue that there is a fundamental difference between changing the retirement age prospectively for future judges and altering the tenure of judges who have already been appointed.
If Parliament can change the retirement conditions of serving judges, petitioners fear that this could establish a precedent for political authorities to alter judicial tenure after appointments have been made.
That, they argue, could weaken the constitutional protection surrounding judicial independence.
A particularly important BASL argument
The BASL has raised an additional issue concerning the possible personal implications of the proposed extension of judicial tenure.
In a petition filed on 24 August, BASL President Rajeev Amarasuriya and Secretary Nalin de Silva challenged the constitutionality of 22A and sought a referendum. The BASL has also raised concerns regarding whether extending the tenure and associated benefits of sitting judges could potentially constitute a form of “gratification” under the Anti-Corruption Act.
The BASL has separately suggested that Chief Justice Preethi Padman Surasena consider recusing himself from the proceedings because the proposed amendment could directly affect his tenure. The BASL has argued that, if necessary, a bench comprising the other sitting Supreme Court judges should hear the petitions.
This introduces another important dimension to the controversy: whether judges who could themselves be affected by the proposed amendment should participate in determining its constitutionality.
Why is a referendum being sought?
The petitioners are essentially asking the Supreme Court to determine that 22A affects constitutional provisions that cannot be amended through Parliament alone.
Their desired route is therefore:
Two-thirds majority in Parliament + approval by the People at a referendum.
The Government, on the other hand, maintains that the amendment is intended to strengthen the judicial system and improve its efficiency. It has also indicated that it will follow the Supreme Court’s determination on whether a referendum is constitutionally required.
The Supreme Court’s determination will therefore be decisive in determining the next stage of the Bill.
Government’s justification
The Government’s case is that Sri Lanka’s courts face significant delays and a large accumulation of cases, and that judicial reform is necessary.
Extending the working lives of experienced Superior Court judges is presented as one mechanism for strengthening judicial capacity. Increasing the number of Court of Appeal judges is similarly intended to improve the court’s ability to deal with its workload.
Thus, the two sides are approaching the issue from fundamentally different perspectives:
Government: judicial reform, experience, efficiency and reducing the case backlog.
Petitioners: judicial independence, security of tenure, separation of powers and protection of the People’s sovereignty.
The constitutional question before the Supreme Court
The Supreme Court is not merely being asked whether raising the retirement age from 65 to 67 is good policy.
The more fundamental question is whether Parliament has constitutional authority to make these changes through the proposed amendment procedure without obtaining approval from the People at a referendum.
That question is particularly significant because the proposed amendment concerns the institutional independence and tenure of the Superior Courts.
The constitutional challenge could therefore have consequences extending beyond the immediate retirement-age issue.
What happens next?
The 22nd Amendment Bill was presented to Parliament on 18 August 2026. Under the constitutional procedure, challenges to the Bill can be brought before the Supreme Court within the prescribed period following its presentation. The Court must then communicate its determination to the Speaker within the constitutionally prescribed period.
The Court’s ruling will determine whether the Government can proceed with the Bill through Parliament or whether the People must also be asked to approve it at a referendum.