By: Ovindi Vishmika
September 23, Colombo (LNW): What the Supreme Court’s determination means for judicial retirement, the independence of the judiciary and Parliament’s next move
The Supreme Court has delivered its much-anticipated determination on the controversial Twenty-Second Amendment to the Constitution, removing one of the biggest obstacles facing the Government’s proposed changes to the retirement ages of superior court judges.
The Court has determined that the provisions of the 22nd Amendment Bill, or any part of it, do not require approval by the people at a referendum under Article 83 of the Constitution.
That does not mean, however, that the Bill can simply be passed in the form in which it was originally presented.
The Supreme Court has directed changes to Clause 2 of the Bill concerning the retirement of Supreme Court and Court of Appeal judges. Once those changes are incorporated, the constitutional amendment can proceed through Parliament with the required special majority.
The determination, communicated to Parliament by Speaker Dr Jagath Wickramaratne on September 22, therefore represents neither an outright rejection of the Government’s proposal nor an unconditional endorsement of the Bill as originally drafted. It is, rather, a constitutional clearance subject to specific corrections identified by the Court.
The question before the Court
The controversy surrounding 22A began almost immediately after the Bill was presented to Parliament on August 18.
The Bill proposes to amend Article 107 of the Constitution so that the retirement age of Supreme Court judges would be increased from 65 to 67, while the retirement age of Court of Appeal judges would be increased from 63 to 65.
It also proposed to alter the composition of the Court of Appeal, increasing the maximum number of its judges from 19 to 24.
The accompanying Judicature (Amendment) Bill seeks corresponding changes affecting the lower courts, including an increase in the number of High Court judges. The Supreme Court determination dealt with both Bills because their constitutionality had been challenged before it.
The constitutional challenge was unusually broad. According to the determination, 72 petitions were considered by the Court, with petitioners raising questions involving Articles 3, 4, 9, 12(1), 28, 83, 107, 108, 110 and 111C of the Constitution.
At the heart of the challenge was a fundamental constitutional question:
Does extending the retirement age of judges affect the sovereignty of the people or the independence of the judiciary in a manner that requires a referendum?
The petitioners advanced arguments ranging from judicial independence to the possibility of political influence over the judiciary. Some argued that extending the retirement age of sitting judges could amount to an inducement or benefit to incumbent judges. Others characterised the proposal in terms of “court capture” or “court packing”, arguing that altering the composition and tenure of the superior courts could have consequences beyond a simple administrative change.
Those arguments made the case much larger than a dispute over two years of a judge’s working life.
It became a constitutional test of the relationship between Parliament, the judiciary and the sovereignty of the people.
No referendum but not a blank cheque
The most politically significant conclusion of the determination is that a referendum is not required.
The Speaker told Parliament that the Supreme Court had determined that the provisions of the 22nd Amendment Bill, or any part of it, do not require approval by the people at a referendum by virtue of Article 83.
That is crucial.
A referendum would have moved the proposed amendment beyond Parliament and into a nationwide vote. The Court has now determined that the constitutional threshold of a referendum is not triggered by this Bill.
But the Court did not leave the Bill untouched.
It identified a problem with the wording of the proviso in Clause 2 and directed that the relevant phrase concerning the Chief Justice reaching the age of 67 be amended.
The Court also directed the insertion of an additional proviso stating that the six-year term limit contained in the first proviso will not apply to a person holding the office of Chief Justice on the date on which the Act comes into operation.
This is one of the most consequential parts of the determination.
What the proposed retirement provision actually does
The Bill’s proposed amendment to Article 107 provides that the retirement age of Supreme Court judges would be 67 and that of Court of Appeal judges 65.
For the Chief Justice, however, the original formulation created a separate limitation: retirement would occur on whichever came first reaching 67 or completing six years from appointment as Chief Justice.
The Supreme Court has now required an additional safeguard concerning the person occupying the office of Chief Justice when the new law comes into operation.
In practical terms, therefore, the Court has ensured that the special six-year limitation will not operate retrospectively against the incumbent Chief Justice.
That detail matters because the constitutional debate has been particularly focused on whether an amendment increasing judicial retirement ages could immediately benefit judges currently holding office.
The Court’s determination addresses that issue directly through the required amendment to the Bill.
Why the Court’s reasoning matters
The determination is significant not merely because of its conclusion, but because of the constitutional questions it had to confront.
The petitioners argued that judicial independence is inseparable from the sovereignty of the people protected by Article 3. They contended that legislation which changes the tenure of serving judges could affect that independence.
The Court, however, was required to examine those arguments within the specific jurisdiction given to it when Parliament refers a Bill for constitutional scrutiny.
The Constitution establishes a special procedure for Bills seeking to amend constitutional provisions. The Supreme Court’s task at this stage is not to decide whether a proposed law is politically desirable or whether Parliament should adopt it as a matter of policy.
Its constitutional task is narrower and more precise:
Is the Bill inconsistent with the Constitution, and if so, what parliamentary or referendum requirement follows from that inconsistency?
That distinction is important.
A Supreme Court determination that a Bill does not require a referendum does not amount to a judicial declaration that every aspect of the policy behind the Bill is beyond criticism.
It means that, constitutionally, the Court has not found the type of inconsistency that would trigger Article 83’s referendum requirement.
The other Bill: a simpler route
The Court’s conclusion regarding the Judicature (Amendment) Bill is even more straightforward.
The Speaker announced that the Supreme Court had determined that the provisions of that Bill are not inconsistent with the Constitution and may be passed by a simple majority of Parliament.
That separates the two pieces of legislation in an important way.
The 22nd Amendment is itself a constitutional amendment and therefore requires the constitutionally prescribed parliamentary majority.
The Judicature Amendment, by contrast, concerns amendments to the ordinary law governing the judiciary and can proceed with a simple parliamentary majority.
The distinction illustrates why the two Bills, although politically connected, carry different constitutional thresholds.
The political controversy does not end with the determination
The Supreme Court’s decision removes the referendum question, but it does not end the political debate.
Indeed, the most difficult part of the controversy may now move from the courtroom to Parliament.
Opposition parties and other critics have questioned why the Government chose to alter judicial retirement ages before the adoption of a new Constitution.
The material accompanying the determination points to a broader political argument: successive Sri Lankan governments have promised constitutional replacement while simultaneously introducing piecemeal amendments to the existing Constitution.
That history provides the background to the current dispute.
The Government’s argument has been that constitutional reform is a lengthy process and that immediate constitutional issues cannot necessarily wait for the completion of an entirely new Constitution.
The proposed judicial retirement changes have also been presented against the backdrop of delays in the administration of justice and the considerable backlog of cases.
Critics, however, have asked whether changes affecting the tenure and composition of the judiciary should be treated as an urgent administrative measure or as part of a larger constitutional settlement.
The Supreme Court determination does not settle that political question.
It settles the constitutional threshold.
The issue of judicial independence remains
Perhaps the most important lesson of the determination is that the referendum issue and the judicial-independence issue should not be treated as identical.
The Court’s finding that a referendum is unnecessary does not make the debate over judicial independence irrelevant.
Nor does opposition to the Bill necessarily establish that it is unconstitutional.
These are different questions.
A retirement age can be altered by legislation. But how, when and under what transitional arrangements that alteration takes effect can raise legitimate questions about institutional independence, public confidence and the separation of powers.
That is why the wording inserted by the Supreme Court is important.
The Court has not merely opened the door for the Government to proceed. It has required the Bill to be adjusted at a sensitive point concerning the Chief Justice.
The constitutional court has therefore performed the role envisaged for it under the Constitution: identifying the constitutional limits within which Parliament must act.
From the courtroom to Parliament
The determination now returns the centre of gravity to Parliament.
The Bill must incorporate the changes directed by the Supreme Court before it proceeds in its constitutionally permissible form.
Parliament has scheduled debate on the 22nd Amendment for September 24 and 25, with a vote expected on September 25.
The political arithmetic will now become critical.
The Government no longer faces the uncertainty of a referendum. But it still has to secure the necessary parliamentary majority for a constitutional amendment.
That makes the coming parliamentary debate more than a procedural exercise.
It will be a test of whether the Government can convince enough MPs that extending the retirement age of judges is necessary, constitutionally sound and institutionally appropriate.
The Opposition, meanwhile, will have to decide whether its campaign should now focus on the substance of the Bill rather than the referendum threshold that has been rejected by the Supreme Court.
A constitutional decision with consequences beyond 22A
The significance of the determination extends beyond the immediate question of whether judges should retire at 65 or 67.
It touches a recurring problem in Sri Lankan constitutional politics: where should the boundary lie between necessary constitutional change and changes that may alter the balance between institutions?
The Supreme Court has now drawn one important line.
It has determined that the 22nd Amendment does not cross the constitutional threshold requiring the direct approval of the people through a referendum.
But it has also demonstrated that constitutional amendments cannot simply be pushed through in whatever form Parliament chooses. Where the Court identifies a constitutional defect or ambiguity, the legislation must be adjusted accordingly.
The final outcome, therefore, will depend on what happens next.
The Court has cleared the referendum hurdle.
It has not cleared the political hurdle.
That belongs to Parliament.
And when MPs take up the Bill later this week, the debate will no longer be about whether the people must vote directly on 22A.
It will be about whether Parliament itself is prepared to give the proposed change the two-thirds majority required to alter the Constitution — and whether the country is prepared to accept the consequences of changing the tenure of its highest judges.
In that sense, the Supreme Court’s determination may have closed one chapter of the 22A controversy.
The more consequential chapter is only beginning.