By The Pulseline News Desk
The Bar Association of Sri Lanka (BASL) has called on the Government to halt the proposed 22nd Amendment to the Constitution in its present form, warning that extending the retirement age of Supreme Court and Court of Appeal judges could have serious implications for the independence of the Judiciary.
The warning came in a statement issued by the BASL today (12), shortly before its scheduled meeting with President Anura Kumara Dissanayake to discuss concerns surrounding the proposed constitutional amendment.
The proposed amendment, gazetted on August 7, seeks changes relating to the retirement age of judges of the superior courts. However, the BASL said the Government’s stated justification that the move would help expedite hearings and improve judicial efficiency did not adequately explain how extending judges’ tenure would achieve those objectives.
The Association said the legal community, including the BASL and the Judicial Service Association, had unanimously expressed opposition to the proposal, viewing it as a direct interference with judicial independence.
The BASL said its concerns had also been echoed by religious leaders, civil society organisations and prominent international law and judges’ associations, highlighting what it described as the broad nature of opposition to the proposed change.
Referendum a constitutional necessity
A central concern raised by the BASL is whether Parliament alone can validly enact the proposed amendment.
The Association pointed to Article 107 of the Constitution, which deals with the retirement age of judges of the Supreme Court and Court of Appeal and is located under Chapter XV, titled “Independence of the Judiciary.”
It also referred to Articles 3 and 4(c), which establish that sovereignty is vested in the People and that judicial power forms part of that sovereignty.
The BASL specifically cited the Supreme Court’s 2022 Special Determination in SC SD 64-71/2022, arguing that the Court had recognised that a constitutional amendment affecting the retirement age or period of office of incumbent judges would impinge on judicial independence and violate Article 3.
On that basis, the BASL maintained that the proposed amendment constitutes an entrenched constitutional provision and therefore cannot be validly enacted without approval by the People at a referendum.
The Association warned that proceeding with the Bill through Parliament without addressing this issue could create a significant constitutional confrontation.
Concern over Supreme Court dilemma
The BASL also highlighted what it described as a particularly sensitive constitutional problem if the Bill is placed on Parliament’s Order Paper.
Once presented, any citizen would have the right to challenge the constitutionality of the proposed amendment before the Supreme Court.
According to the BASL, this could put Supreme Court judges in an “embarrassing and constitutionally sensitive position”, as they could ultimately be required to determine the constitutionality of legislation that would directly affect the duration of their own tenure.
The Association therefore urged that, if the Government intends to proceed with the proposal, Cabinet should submit the Bill directly to the People at a referendum.
Such a course, it argued, would avoid placing the Supreme Court in the position of having to determine the constitutionality of an amendment that would extend the tenure of its own judges.
Calls for wider consultation
The BASL further criticised what it described as the absence of adequate consultation with the principal stakeholders before the proposed amendment was introduced.
It said constitutional amendments affecting the Judiciary in other jurisdictions have generally been preceded by transparent, inclusive and lengthy consultation processes involving relevant stakeholders.
The Association stressed that judicial independence is not merely an institutional concern but a fundamental component of the Rule of Law and constitutional governance.
Against this backdrop, the BASL urged the Government to refrain from proceeding with the proposed 22nd Amendment in its present form and to give due consideration to the constitutional, legal and institutional concerns raised by the legal profession and other stakeholders.
The statement was signed by BASL President Rajeev Amarasuriya and Secretary Nalin de Silva.
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