22A clears referendum hurdle as Supreme Court opens path for parliamentary passage

By Pulseline News Desk

The Government’s proposed 22^nd Amendment to the Constitution has cleared a major constitutional hurdle, with the Supreme Court determining that the Bill does not require approval at a referendum under Article 83 of the Constitution, Speaker Jagath Wickramaratne informed Parliament today.

Reading the Supreme Court’s determination in Parliament, the Speaker said the provisions of the 22^nd Amendment Bill, or any part of it, do not require approval by the People at a referendum by virtue of Article 83.

The determination comes after 67 petitions challenging the constitutionality of the proposed amendment were considered by the Supreme Court, making the legislation one of the most closely scrutinised constitutional proposals to reach Parliament in recent years.

The Court’s determination is significant because the central constitutional dispute surrounding the 22^nd Amendment had been whether the proposed changes to the retirement age and tenure of superior court judges affected the sovereignty of the People under the Constitution and therefore required a referendum in addition to a parliamentary majority.

The Government had maintained throughout the proceedings that the proposed reforms did not affect any of the entrenched provisions requiring approval by referendum.

The Attorney General’s Department had argued before the Court that the Bill did not amend any of the provisions specified in Article 83 and therefore did not require a referendum.

Change required to Clause 2

While clearing the referendum requirement, the Supreme Court has nevertheless identified a change that needs to be made to Clause 2 of the Bill.

According to the Speaker’s reading of the determination, the Court has directed that the relevant provision in Clause 2 be amended in the manner specified by the Court.

Under the Bill, the retirement age of Supreme Court judges would be increased from 65 to 67, while the retirement age of Court of Appeal judges would increase from 63 to 65. The Bill also proposes changes relating to the tenure of the Chief Justice and the number of judges serving in the Court of Appeal.

The Supreme Court’s determination therefore does not amount to an unqualified endorsement of every provision in its present form. Rather, it establishes the constitutional route through which the legislation can proceed while identifying the amendment required to Clause 2.

Two-thirds majority remains central

Although a referendum has been ruled out, the constitutional amendment remains subject to the parliamentary majority required for constitutional amendments.

A referendum would have required the Bill to be approved by the People following passage with the constitutionally prescribed special majority in Parliament. With the Supreme Court determining that Article 83 does not require such approval, the Government’s will now use its two-thirds majority in the House to pass the proposed constitutional amendment.

Parliament has already scheduled the Second Reading debate on the 22^nd Amendment and the Judicature (Amendment) Bill for September 24 and 25.

Judicature Bill can proceed with simple majority

The Supreme Court has also determined that the proposed Judicature (Amendment) Bill is not inconsistent with the Constitution and therefore can be passed by Parliament with a simple majority.

The companion legislation is designed to extend the retirement ages of judges in the lower judiciary and increase judicial capacity.

The Government has presented the two Bills as part of a wider effort to address delays in the judicial system, with the proposed changes intended to retain experienced judges and expand the number of judges available to deal with the workload.

The Judicature Bill is separate from the constitutional amendment and, unlike the 22^nd Amendment, does not itself require a constitutional amendment.